                                                                                FILED
                            NOT FOR PUBLICATION                                 JAN 25 2013

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



                            FOR THE NINTH CIRCUIT


BILLY COY COCHRAN,                               No. 10-15362

              Petitioner - Appellant,            D.C. No. 1:06-cv-00909-CRB

  v.
                                                 MEMORANDUM*
JAMES E. TILTON, Director Department
of Corrections,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Charles R. Breyer, District Judge, Presiding

                      Argued and Submitted January 16, 2013
                            San Francisco, California

Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**

       Cochran appeals from the district court’s partial denial of his habeas

petition. In his habeas petition, Cochran argued that he was deprived of the counsel



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
guaranteed under the Sixth Amendment because his trial counsel was ineffective

for failing to move to suppress the gun that was admitted into evidence. The facts

of the case are known to the parties. We have jurisdiction under 28 U.S.C. §§ 1291

and 2253, and we affirm.

      We review a district court’s denial of a habeas petition de novo, using the

standards set forth in AEDPA. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.

2000) (en banc); see Lindh v. Murphy, 521 U.S. 320, 326 (1997). Thus, we may

grant habeas relief only if the last reasoned state-court decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Where, as here, there is no reasoned state court decision, we “must determine what

arguments or theories . . . could have supported . . . the state court’s decision; and

then [we] must ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in a prior decision of

[the Supreme] Court.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Under

Strickland v. Washington, the defendant bears the burden of establishing

ineffective assistance of counsel by showing (1) “that counsel’s representation fell

below an objective standard of reasonableness,” and (2) that the “deficient

performance prejudiced” the defendant. 466 U.S. 668, 687–88 (1984).


                                           2
      Here, the California Supreme Court could reasonably have determined that

Cochran’s trial counsel did not perform deficiently without running contrary to, or

unreasonably applying, clearly established federal law. There is a “reasonable

argument that counsel satisfied Strickland’s deferential standard,” Harrington, 131

S. Ct. at 788, since trial counsel could have reasonably determined that a

suppression motion would have been strategically unwise or futile, see Strickland,

466 U.S. at 681, 691. Whether a motion to suppress would have been successful at

trial is at least a close question with regard to the search performed by Cochran’s

mother and sister, see Georgia v. Randolph, 547 U.S. 103, 110–11 (2006); Skinner

v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614–15 (1989), and the officer’s

subsequent entrance into the trailer and seizure of the gun, see United States v.

Jacobsen, 466 U.S. 109, 115 (1984); Illinois v. Rodriguez, 497 U.S. 177, 179, 186

(1990).

      Moreover, the California Supreme Court could have reasonably concluded

that Cochran was not prejudiced by his trial counsel’s performance without

running contrary to, or unreasonably applying, clearly established federal law.

Since it is not clear that the gun admitted into evidence was the basis for the

conviction, “fairminded jurists could disagree” about whether suppression of the

gun would have changed the ultimate verdict. Harrington, 131 S. Ct. at 786.


                                          3
AFFIRMED.




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