                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            MAR 21 2013

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


                              FOR THE NINTH CIRCUIT

 ANDRES GONZALEZ,                             No. 12-55018

                Petitioner - Appellant,       D.C. No. 2:04-cv-04795-GAF-PLA

          vs.
                                              MEMORANDUM *
 EDWARD J. CADEN, Warden,

                Respondent - Appellee.


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

                         Argued and Submitted March 4, 2013
                                Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and HADDON, District
Judge.**

      Andres Gonzalez appeals the district court’s denial of his 28 U.S.C. § 2254

Petition for Writ of Habeas Corpus challenging his convictions for attempted

murder, shooting at an occupied motor vehicle, and six counts of assault with a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Sam E. Haddon, United States District Judge for the
District of Montana, sitting by designation.
firearm. He contends that trial counsel provided ineffective assistance in violation

of the Sixth Amendment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253

and affirm the district court’s order denying habeas relief.

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

Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012), petition for cert. filed, 81

U.S.L.W. 3422 (U.S. Nov. 15, 2012)(Nos. 12894, 12A336). Findings of fact are

reviewed for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs our review of the petition. Under AEDPA, habeas relief may not be

granted unless the state court’s adjudication of a claim “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or the

State court’s conclusions were “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); see also Harrington v. Richter, 131 S. Ct. 770, 787–88 (2011) (describing

AEDPA deference owed to a state court’s ruling on an ineffective assistance of

counsel claim).

       To prove ineffective assistance of counsel, Gonzalez must show: (1) that

counsel’s performance was deficient; and (2) that the deficient performance



                                           2
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An

attorney’s performance is deemed deficient if it is objectively unreasonable under

prevailing professional norms. Id. at 688. To demonstrate prejudice, Gonzalez

must show “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. A reasonable

probability is defined as “a probability sufficient to undermine confidence in the

outcome.” Id.

      Gonzalez claims that his counsel rendered ineffective assistance because she

failed to present an eyewitness at trial and that he suffered prejudice as a result.

Gonzalez properly raised and exhausted his claim in state court where it was

rejected. We conclude there was a reasonable basis for rejecting the claim.

Although trial counsel’s performance was deficient, it was not prejudicial.

      Gonzalez was convicted on the strength of multiple eyewitness

identifications. All six victims in this case identified Gonzalez as the shooter

during field show-ups on the night of the incident. Three of the six victims

identified him as the shooter at trial. Nothing in the record showed that any of the

victims had any particular motivation to falsely accuse Gonzalez.

      The uncalled eyewitness, Dagoberto Cardona, was not a disinterested

witness. On the night of the incident, law enforcement located Cardona hiding



                                            3
along with Gonzalez and Michael Valencia in a carport near the trailer park where

the shooting occurred. All six victims also identified Valencia as a person

involved in the incident during field show-ups.

      It was not unreasonable for the state court to conclude under these

circumstances that Cardona’s proposed testimony was not reasonably likely to

have altered the outcome of the trial. See Strickland, 466 U.S. at 696; see also

Richter, 131 S. Ct. at 792.

      AFFIRMED.




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