                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 22 2013

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




                            FOR THE NINTH CIRCUIT



MICHAEL JOSEPH PRATT,                             No. 10-16028

              Petitioner - Appellant,             D.C. No. 2:02-cv-00872-MCE-
                                                  JFM
  v.

ANTHONY HEDGPETH, Warden,                         MEMORANDUM *

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Morrison C. England, Chief District Judge, Presiding

                        Argued and Submitted April 19, 2013
                             San Francisco, California

Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.

       California state prisoner Michael Joseph Pratt appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Scope and Standard of Review

      Habeas petition relief is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) and cannot be granted unless the state court’s

adjudication of the merits of the petitioner’s claim was (1) “contrary to, or

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

determined by the Supreme Court of the United States”; or (2) “based on an

unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

      Pratt filed his federal habeas petition after the effective date of AEDPA, but

the California Supreme Court denied Pratt’s state habeas petition as untimely,

citing In re Robbins, 959 P.2d 311, 317–18 (Cal. 1998). We agree with Pratt that

there was no state decision on the merits of his claim and that the state waived its

procedural default argument by raising it for the first time on appeal. See Franklin

v. Johnson, 290 F.3d 1223, 1229–32 (9th Cir. 2002). Accordingly, we review

Pratt’s habeas claim de novo, see Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir.

2013) (per curiam), and the limitation on reviewing evidence presented for the first

time in federal habeas proceedings outlined in Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011), does not apply. See Gentry v. Sinclair, 705 F.3d 884, 896–97

(9th Cir. 2012).




                                           2
2.    Strickland Claim

      Pratt contends his trial counsel rendered ineffective assistance by failing to

fully investigate and present a mental health defense. Under Strickland v.

Washington, 466 U.S. 668 (1984), Pratt must demonstrate that: (1) his “counsel’s

representation fell below an objective standard of reasonableness,” id. at 688; and

(2) “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different,” id. at 694. Our review of

counsel’s performance is “highly deferential,” with a presumption that counsel’s

conduct was reasonable. Id. at 689.

      Pratt failed to demonstrate that his counsel’s decision to pursue an “all or

nothing” self-defense strategy was deficient. Given Pratt’s two prior strikes, the

“perfect” self-defense tactic was within the range of defense counsel’s permissible

strategic decisions. Pratt argues that this strategy was deficient because self-

defense was not a defense to his assault charge (which would also have constituted

a “third strike”), but Pratt’s counsel successfully achieved an acquittal on the

assault charge. On this record, we cannot say that defense counsel’s strategic

choice fell below an objective standard of reasonableness.

      AFFIRMED.




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