                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAR 26 2013

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




                                FOR THE NINTH CIRCUIT



 KELLY DEAN WORTHAN,                                    No. 11-35692

                Petitioner - Appellant,                 D.C. No. 9:11-cv-00048-DWM

   v.
                                                        MEMORANDUM *
 ATTORNEY GENERAL OF THE STATE
 OF MONTANA and LEROY
 KIRKEGARD ,

                Respondents - Appellees.


                       Appeal from the United States District Court
                               for the District of Montana
                       Donald W. Molloy, District Judge, Presiding

                           Argued and Submitted March 6, 2013
                                    Portland, Oregon

   Before: CLIFTON and BEA, Circuit Judges, and MAHAN, District Judge.**




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable James C. Mahan, District Judge for the U.S. District Court for the
District of Nevada, sitting by designation.
      Appellant Kelly Dean Worthan (“Worthan”) appeals the district court’s

denial of his 28 U.S.C. § 2254 petition challenging his Montana convictions. This

court granted a certificate of appealability as to whether Worthan received

ineffective assistance of counsel at trial. We have jurisdiction under 28 U.S.C. §

2253. We review de novo, see McCormick v. Adams, 621 F.3d 970, 975 (9th Cir.

2010), and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we may grant a habeas writ only if the state court decision is

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

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

based on an unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d)(1).

      The applicable law in Worthan’s case is Strickland v. Washington, 466 U.S.

668 (1984), which is “clearly established Federal law” under the AEDPA. See

Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011). “The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. at 788 (internal citations and quotations

omitted).

      To prevail on a claim of ineffective assistance of counsel, Worthan must



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show: (1) that his trial counsel’s performance fell outside a wide range of

reasonableness, and (2) that he was prejudiced by that performance. Weighall v.

Middle, 215 F.3d 1058, 1062 (9th Cir. 2000) (citing Strickland, 466 U.S. at 691,

694).

        First, Worthan claims ineffective assistance of counsel because his trial

counsel said she would call an expert, Dr. Michael Scolatti, during her opening

statement. Trial counsel never called Dr. Scolatti to the stand. The Montana

Supreme Court held there was no prejudice under Strickland because “Dr.

Scolatti’s testimony during sentencing actually supported the conclusion that the

State forensic interviews were conducted in a professional and proper manner.”

Worthan v. State, 232 P.3d 380, 384 (Mont. 2010). We find that the state court’s

decision was not an unreasonable application of Strickland.

        Second, Worthan claims ineffective assistance of counsel because his trial

counsel failed adequately to assess the credentials of proposed defense expert

David Stube. The Montana Supreme Court held that trial counsel’s performance

was not deficient because trial counsel met with Stube, reviewed his curriculum

vitae, and discussed his Ph.D. with him. Worthan, 232 P.3d at 384. Further, the

state court found that Stube “glossed over or even misled” trial counsel regarding

his qualifications. Id. We find that the state court’s decision was not an



                                           3
unreasonable application of Strickland.

      Upon the record as a whole, we are compelled to conclude that the state

court’s rejection of Worthan’s ineffective assistance of counsel claim was not

contrary to or an unreasonable application of clearly established federal law. See

Harrington, 131 S.Ct. at 786.

      AFFIRMED.




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