                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           DEC 09 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

WARREN LEROY MILLER,                             No. 09-35971

              Petitioner - Appellant,            D.C. No. 3:07-cv-00169-MA

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding

                          Submitted December 7, 2010 **
                              Seattle, Washington

Before: O’SCANNLAIN, and TALLMAN, Circuit Judges, and EZRA, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      Miller claims that his Sixth Amendment rights were violated when his trial

counsel, Janet Boytano, failed to investigate Debbie Barreras and failed to locate

other girls who had lived in Barreras’s foster home.

      To prevail on a Sixth Amendment claim, Miller must demonstrate that his

counsel’s performance was deficient and that he was prejudiced by the deficiency.

Strickland v. Washington, 466 U.S. 668, 690–92 (1984). The state post-conviction

review (“PCR”) court found that Miller’s evidence demonstrated, at most, that

Boytano knew that one other girl who had previously lived with Barreras had made

false accusations of sexual abuse. The PCR court’s factual findings are entitled to

deference, and we conclude that they are not unreasonable in light of the evidence.

See 28 U.S.C. § 2254(e)(1). Given its findings, the PCR court’s conclusion—that

Boytano’s failure to investigate was not deficient—was a reasonable application of

Strickland. See id. § 2254(d).

      Because Miller has failed to demonstrate that Boytano’s performance was

“professionally unreasonable,” we need not decide whether Miller was prejudiced

by Boytano’s failure to investigate. See Strickland, 466 U.S. at 691.

      AFFIRMED.




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