                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 10 2011

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

JOHNNY EDWARD HAMILTON,                          No. 09-17483

              Petitioner - Appellant,            D.C. No. 3:06-cv-00273-PMP-
                                                 VPC
  v.

E. K. MCDANIEL; ATTORNEY                         MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Philip M. Pro, District Judge, Presiding

                    Argued and Submitted November 30, 2010
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

       Johnny Edward Hamilton appeals from the denial of his petition for a writ of

habeas corpus challenging his Nevada state court conviction for possession of a

controlled substance. He argues that his trial counsel, Robert C. Bell, rendered



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ineffective assistance by not eliciting trial testimony from three assertedly

exculpatory witnesses, by not contesting at trial that powder recovered at the crime

scene was cocaine, and by not filing a direct appeal. We have jurisdiction pursuant

to 28 U.S.C. § 2253.

                                           I

      Hamilton argues that Bell rendered ineffective assistance by not eliciting

trial testimony from three exculpatory witnesses. At trial, Bell explained that he

made a “tactical decision” not to call these witnesses because, in light of their

criminal histories and personal antipathy toward Hamilton, their testimony would

likely weaken Hamilton’s defense. Strickland v. Washington instructs that

reviewing courts generally should not second-guess the strategic decisions of trial

counsel, 466 U.S. 668, 690–91 (1984), and the state courts did not unreasonably

apply Strickland here. See 28 U.S.C. § 2254(d) (providing that a habeas petition

shall be granted if the state court applied clearly established law unreasonably).

Bell’s alleged failure to interview the witnesses before trial does not in this case

undermine the strategic nature of his trial decision. See Strickland, 466 U.S. at 691

(“[C]ounsel has a duty to . . . make a reasonable decision that makes particular

investigations unnecessary.”). Here, the characteristics of the witnesses, including

their criminal records, supported counsel’s strategic decision that calling them to


                                           2
testify for Hamilton would have been counterproductive. We affirm the district

court’s disposition of this issue.

                                           II

      Hamilton argues that Bell rendered ineffective assistance by not contesting

at trial that the substance recovered at the crime scene, for possession of which

Hamilton was convicted, was cocaine. Hamilton criticizes his trial counsel for

stipulating that Terry Hanson, a criminalist, determined that the recovered

substance was cocaine, and for not objecting when Albert Snover, a police officer,

testified to identifying the substance as cocaine by conducting a “presumptive test”

at the scene.

      Strickland holds that a successful claim for ineffective assistance of counsel

must establish that counsel’s error caused prejudice to the defendant. 466 U.S. at

694. Hamilton has not established that absent these asserted errors, the prosecutor

would not otherwise have proved that the identity of the recovered substance was

cocaine, and in his habeas case Hamilton submitted no evidence showing that it

was error to conclude cocaine was found adjacent to Hamilton when he fell. The

state courts did not unreasonably apply Strickland here. See 28 U.S.C. § 2254(d).

We affirm the district court’s disposition of this issue.




                                           3
                                         III

      Bell did not file an appeal after Hamilton’s conviction and sentencing. In

Roe v. Flores-Ortega, the Supreme Court held that an attorney renders ineffective

assistance by failing to perfect an appeal despite an obligation to do so. 528 U.S.

470, 477–81 (2000). An obligation arises when the defendant instructs counsel to

appeal, id. at 477, or when counsel neglects to consult with the defendant about

appealing even though the defendant reasonably demonstrated an interest in

appealing or a rational defendant would want to appeal, id. at 478–80. Counsel’s

omission causes prejudice when it is reasonably probable that the defendant would

have appealed but for counsel’s failure to consult with him. Id. at 484.

      The state court’s factual finding that Hamilton never instructed Bell to

appeal was consistent with Flores-Ortega, and we affirm the district court’s denial

of Hamilton’s challenge to that finding. See Pollard v. Galaza, 290 F.3d 1030,

1033 (9th Cir. 2002) (“State court findings of fact are to be presumed correct

unless the petitioner rebuts the presumption with clear and convincing evidence.”).

However, that does not end the matter of assessing whether Bell’s failure to appeal

constituted ineffective assistance of counsel. The district court did not inquire

whether, accepting that Hamilton did not ask his counsel to appeal, counsel failed

to consult about an appeal. If no consultation occurred, a determination of


                                          4
ineffective assistance will turn upon the existence of circumstances showing that

Hamilton reasonably demonstrated an interest in appealing or that a rational

defendant would have wanted to appeal. We remand so the district court may

conduct the full inquiry required by Flores-Ortega.1

      The parties shall bear their own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




      1
         The district court stated that this aspect of Hamilton’s claim was
unexhausted. We disagree. The record suggests that Hamilton may indeed have
argued before the state courts that Bell’s failure to appeal constituted ineffective
assistance because of Bell’s accompanying failure to consult. However, even
assuming that Hamilton argued this theory for the first time in his federal habeas
petition, the changed factual predicate (that is, Bell’s failure to consult) does not
render Hamilton’s legal claim (that is, ineffective assistance for failure to appeal)
unexhausted. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (“[N]ew
factual allegations do not render a claim unexhausted unless they fundamentally
alter the legal claim already considered by the state courts.” (citation and quotation
marks omitted)).
                                          5
