                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARIBEL A. GOMEZ,                                No.   15-35359

              Petitioner-Appellant,              D.C. No. 2:14-cv-00222-RMP

 v.
                                                 MEMORANDUM*
JANE PARNELL,

              Respondent-Appellee.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                          Submitted December 7, 2016**
                              Seattle, Washington

Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.

      Maribel Gomez, a Washington state prisoner, appeals the denial of her 28

U.S.C. § 2254 habeas corpus petition challenging her Grant County Superior Court

conviction by bench trial for homicide by abuse of her twenty-five-month old son,


      *
             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).
Rafael. Gomez claims that her trial counsel, Robert Moser, provided ineffective

assistance by failing to produce adequate expert testimony regarding her defense.

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

      The Washington Supreme Court reasonably determined that Moser’s

preparation of the expert witness, Dr. Ophoven, did not amount to ineffective

assistance of counsel. See 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 466

U.S. 668, 687–88 (1984). While Moser may have provided Dr. Ophoven with

some of the necessary materials inconveniently close to her scheduled testimony,

Dr. Ophoven was nonetheless able to fully review them, write a complete report,

and provide adequate testimony in support of the defense at trial. There is no

evidence that Dr. Ophoven’s opinion as to the cause of death—aspiration

pneumonia—would have changed had she received the information earlier.

Gomez therefore cannot show that Moser’s preparation of Dr. Ophoven prejudiced

her at trial. See Strickland, 466 U.S. at 687.

      Further, any “concession” by Moser as to a history of abuse did not

prejudice Gomez’s trial. Not only was there ample evidence in the record to

support such a finding, but abuse is also not an element of the crime of homicide

by abuse. See WASH. REV. CODE § 9A.32.055(1). Rather, homicide by abuse

requires a pattern of assault or torture. Id. As such, Dr. Ophoven’s testimony did


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not actually concede any element of the crime, and the trial judge recognized and

carefully articulated the distinction between abuse and assault or torture in his

written verdict. Thus, Gomez has not shown that the outcome of her trial would

have been different. Strickland, 466 U.S. at 694.

      The Washington Supreme Court also properly determined that Moser was

not ineffective by failing to consult additional experts regarding the alleged pattern

of assaults and the evidence of violent shaking. Although Gomez claimed that

various experts could have testified at trial regarding alternative causes of death,

the testimonies she offered were limited to one or two injuries sustained by Rafael

and did not attempt to explain Rafael’s long history of abuse. Moreover, the expert

testimonies envisioned by Gomez did not speak to the trial judge’s conclusion on

the cause of death. Because those testimonies attempted to undermine the state’s

evidence on violent shaking—but did not directly rebut the ultimate factual finding

that Rafael died of blunt force trauma—there is no indication that the trial judge

would have reached a different verdict. Gomez again fails to show she suffered

any prejudice at trial. Id.

      Our review of the Washington Supreme Court’s resolution of the Strickland

claim is “doubly deferential” under the AEDPA, Cullen v. Pinholster, 563 U.S.

170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 121 n.2, 123


                                           3
(2009)), and on this record we cannot say that the state court’s judgment “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law,” 28 U.S.C. § 2254(d)(1). The decision of the

district court is

       AFFIRMED.




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