                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 21 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL J. CORBETT,                              No. 14-15281

              Petitioner - Appellant,            D.C. No. 4:12-cv-02070-PJH

 v.
                                                 MEMORANDUM*
DR. JEFFREY BEARD,

              Respondent - Appellee.


                  Appeal from the United States District Court
                       for the Northern District of California
                Phyllis J. Hamilton, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2015
                            San Francisco, California

Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.

      Michael Corbett, a California state court prisoner, appeals from the district

court’s denial of his petition for a writ of habeas corpus. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. There are three components of a true Brady violation: (1) the evidence at

issue must be favorable to the accused, either because it is exculpatory or

impeaching; (2) the evidence must have been suppressed by the prosecution, either

willfully or inadvertently; and (3) the suppression must have been prejudicial,

which is satisfied when the evidence is material. Banks v. Dretke, 540 U.S. 668,

691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Assuming (1) the

transcripts of Corbett’s calls with his daughters were favorable impeachment

evidence and (2) they were under the control of and suppressed by the prosecution,

it was not an unreasonable application of Brady v. Maryland, 373 U.S. 83 (1963),

under AEDPA for the California Court of Appeal to hold that the call transcripts

were not material.

      Evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). The

transcripts of Corbett’s phone calls to his older daughter were not material. In the

calls, Corbett repeatedly expressed his concerns about his daughters “going up

against” him as witnesses for the prosecution. Given that context, the older

daughter’s interpretation of Corbett’s offer of $30,000 in land as an incentive to

refuse to testify was understandable. It was not unreasonable for the Court of


                                          2
Appeal to determine that the impeachment value of the transcripts of Corbett’s

calls to his older daughter was not material.

      The transcripts of Corbett’s phone calls to his younger daughter were also

not material. It was not unreasonable for the Court of Appeal to determine that the

calls were not “materially different from what [the younger daughter] testified to at

trial.” The tone of the calls was combative, and given the context of the

conversation, it was reasonable for the younger daughter to think that Corbett was

“in effect, accusing her of being complicit in the victim’s molestation.” It was

therefore reasonable for the Court of Appeal to hold that the transcript provided

immaterial impeachment value.

      2. To prevail on a Sixth Amendment ineffective assistance of counsel claim,

a petitioner must establish: (1) that his counsel was deficient, meaning that counsel

fell below an “objective standard of reasonableness;” and (2) that he was

prejudiced by counsel’s deficient performance, meaning that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). When analyzing ineffective assistance of counsel claims under

AEDPA, we must be “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190

(2011) (citation omitted).


                                           3
       Corbett’s Strickland claim is based on his attorney’s failure to obtain the

transcripts of the calls. For the same reasons described above, Corbett’s attorney’s

failure to obtain these transcripts, even if it fell below an objective standard of

reasonableness, was not prejudicial. See Strickland, 466 U.S. at 694 (explaining

that the test for prejudice “finds its roots in the test for materiality” in Brady).

       Moreover, to the extent Corbett’s claim is based on his trial attorney’s

alleged substance abuse, his claim also fails. Corbett did not identify any specific

behaviors, other than those related to the call transcripts, that show his attorney’s

conduct fell below an objective standard of reasonableness. See Bonin v.

Calderon, 59 F.3d 815, 838 (9th Cir. 1995).

       AFFIRMED.




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