                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 21 2013

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



                           FOR THE NINTH CIRCUIT


DION WINSTON,                                    No. 12-15483

              Petitioner - Appellant,            D.C. No. 2:09-cv-00393-JCM-RJJ

  v.
                                                 MEMORANDUM*
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                          Submitted November 5, 2013**
                              Pasadena, California

Before: GOODWIN, FISHER, and CLIFTON, Circuit Judges.

       Appellant Dion Winston appeals the district court’s denial of his 28 U.S.C. §

2254 habeas petition. Winston alleges that his trial counsel’s failure to interview


        *
             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).
Robert LaBelle before trial was ineffective assistance of counsel. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

      We review de novo a district court’s denial of habeas corpus relief. Miles v.

Ryan, 713 F.3d 477, 485 (9th Cir. 2013). The Antiterrorism and Effective Death

Penalty Act (“AEDPA”) permits federal habeas relief only if Winston

demonstrates that the state court’s denial of his claim (1) “was contrary to, or

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

determined by the Supreme Court” or (2) “was 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)(1)-(2). Review of ineffective assistance claims

under AEDPA is “doubly deferential,” and relief may be granted only if the state

court “unreasonably applied the more general standard for

ineffective-assistance-of-counsel claims established by” Strickland v. Washington,

466 U.S. 668 (1984). Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013)

(quoting Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009)) (internal quotation

marks omitted). Under Strickland, Winston must demonstrate both that counsel’s

performance was constitutionally deficient and that such deficiency prejudiced the

defense. See 466 U.S. at 687.




                                          2
      It was not unreasonable for the state court to conclude that Winston was not

prejudiced by counsel’s failure to interview LaBelle before trial. The jury heard

LaBelle’s testimony and, after weighing it against the conflicting testimony and

physical evidence presented at trial, rejected his account of the shooting. See

Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (“[I]neffective

assistance claims based on a duty to investigate must be considered in light of the

strength of the government’s case.”); see also Wilson v. Henry, 185 F.3d 986,

988-90 (9th Cir. 1999).

      Winston’s argument that counsel could have obtained exculpatory physical

evidence as a result of a pre-trial interview with LaBelle is similarly unpersuasive.

Both nine millimeter and .45 caliber shell casings were found near where witnesses

testified they saw Winston with a gun on the night of the shooting. Police

recovered unused .45 caliber ammunition at Winston’s mother’s house, but no

evidence connected Winston to the nine millimeter casings. Because the state’s

theory of the case was that Winston was liable either as the shooter or for aiding

and abetting the shooter, evidence of the caliber of bullet that hit LaBelle would

not have had a reasonable probability of affecting the outcome at trial. See

Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (holding that in assessing




                                          3
prejudice under Strickland, “[t]he likelihood of a different result must be

substantial, not just conceivable”).

      Winston’s argument that the state court based its decision on an

unreasonable determination of facts is without merit. See Taylor v. Maddox,

366 F.3d 992, 999 (9th Cir. 2004) (“[A] federal court may not second-guess a state

court’s fact-finding process unless, after review of the state-court record, it

determines that the state court was not merely wrong, but actually unreasonable.”).

      Accordingly, the state court’s decision qualifies for deference under 28

U.S.C. § 2254(d). We therefore deny Winston’s motion to expand the record on

appeal. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under §

2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits.”); 28 U.S.C. § 2254(d)(2) (limiting review to “evidence

presented in the State court proceeding”); see also Johnson v. Finn, 665 F.3d 1063,

1069 n.1 (9th Cir. 2011).

      The district court’s denial of Winston’s habeas petition is AFFIRMED and

his motion to expand the record on appeal is DENIED.




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