                                                                      FILED
                        NOT FOR PUBLICATION                            DEC 19 2012

                                                                   MOLLY C. DWYER, CLERK
                 UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                        FOR THE NINTH CIRCUIT



CURTIS W. HEALAN,                           No. 11-56559

           Petitioner-Appellant,            D.C. No. 2:10-cv08631-JAK-PLA

                                                               *
 v.                                         MEMORANDUM

RAUL LOPEZ, Warden, Corcoran State
Prison

          Respondent-Appellee.



                Appeal from the United States District Court
                   for the Central District of California
                John A. Kronstadt, District Judge, Presiding

                       Submitted December 7, 2012 **
                           Pasadena, California
Before: IKUTA and NGUYEN, Circuit Judges, and BURNS, District Judge.***

      California state prisoner Curtis Healan appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

      The California Court of Appeal’s decision was not “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” 28 U.S.C. § 2254(d)(2), because the trial judge’s

determination that Healan’s counsel never fell asleep during trial, but functioned

appropriately and competently, was supported by the evidence presented at the

hearing, including the judge’s own observations of counsel’s trial performance.

Cf. Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (trial judge was in good

position to evaluate attorney’s actual performance). Healan has not rebutted the




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Larry A. Burns, District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.




                                           2
trial court’s findings by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1).

      The California Court of Appeal’s decision was neither “contrary to” nor an

“unreasonable application of” Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

No Supreme Court case holds “that prejudice shall be presumed in circumstances”

where the attorney may be mentally impaired. Dows, 211 F.3d at 484–86. Given

the overwhelming evidence of Healan’s guilt, he has not shown that he was

prejudiced by any error he now assigns to his counsel. See Strickland v.

Washington, 466 U.S. 668, 694 (1984).

AFFIRMED.




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