                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PHILIP ROGERS,                                   No.   18-55102

              Petitioner-Appellant,              D.C. No. 2:16-cv-00901-JC

 v.
                                                 MEMORANDUM*
DEBBIE ASUNCION, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Jacqueline Chooljian, Magistrate Judge, Presiding

                    Argued and Submitted September 11, 2019
                              Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Philip Rogers appeals the district court’s decision to deny his petition for a

writ of habeas corpus.1 We have jurisdiction under 28 U.S.C. § 2253.

      Rogers failed to establish that his trial counsel rendered ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984).

Even if Rogers’s trial counsel had introduced evidence that Mary Webster had .28

micrograms per milliliter of cocaine in her system at the time of the accident, there

is not a reasonable probability that the result of the proceeding would have been

different, given the jury was presented with evidence that Rogers had a high level

of intoxication at the time of the incident, was driving with a revoked license over

the speed limit, and had prior convictions for both driving under the influence of

alcohol and driving while having 0.08% alcohol or more in his blood. Further

supporting this conclusion, Rogers failed to introduce evidence that the cocaine in

Ms. Webster’s system had any intoxicating effect, and the video footage of the

incident presented to the jury did not show that Ms. Webster’s movements at the

time of the incident indicated intoxication. Because we conclude on de novo

review that Rogers failed to show that any deficient performance of trial counsel


      1
          We grant Rogers’s motions to take judicial notice of a Google map
depicting the intersection where the events at issue took place and to transmit to the
Court and take judicial notice of a video of the accident introduced during Rogers’s
trial in state court. See McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th
Cir. 2012); Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
                                          2
prejudiced the defense, we need not reach the question whether we afford AEDPA

deference to the state court’s decision. See Berghuis v. Thompkins, 560 U.S. 370,

389 (2010).

      AFFIRMED.




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