                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 07 2013

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




                            FOR THE NINTH CIRCUIT



GRAHAM ROGER-LEE DE-LUIS-                        No. 09-17048
CONTI,
                                                 D.C. No. 4:05-cv-02245-SBA
              Petitioner - Appellant,

  v.                                             MEMORANDUM *

M. S. EVANS, Warden, Salinas Valley
State Prison,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                          Submitted February 14, 2013 **
                            San Francisco, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.

       Graham Roger-Lee De-Luis-Conti appeals the district court’s denial of his

28 U.S.C. § 2254 petition. Conti challenges several state court convictions,


        *
             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).
claiming that he was denied effective assistance of counsel and that insufficient

evidence supported his conviction under California Penal Code sections 269(a)(5)

and 289(a). We have jurisdiction under 28 U.S.C. § 2253(a). We affirm.

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

See, e.g., Ali v. Hickman, 584 F.3d 1174, 1181 (9th Cir. 2009) (citing Juan H. v.

Allen, 408 F.3d 1262, 1269 n.7 (9th Cir. 2005)). This case is governed by

AEDPA. 28 U.S.C. § 2254. Under § 2254(d), we review whether the last state

court decision on the merits:

      (1) 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 (2) resulted in a decision that 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).

      Once we have conducted an intrinsic review of the state court's fact finding

process, "the state court's findings are dressed in a presumption of correctness,

which then helps steel them against any challenge based on extrinsic evidence, i.e.,

evidence presented for the first time in federal court." Taylor v. Maddox, 366 F.3d

992, 1000 (9th Cir. 2004). Extrinsic evidence is sufficient to overturn the state

court's fact-finding "only if such new evidence amounts to clear and convincing

proof that the state-court finding is in error." Id. (citing § 2254(e)(1)).


                                           2
      When reviewing a state court’s determination of a Strickland claim under

AEDPA, the question that we must ask is whether the state court’s application of

the Strickland standard was unreasonable, and not just whether defense counsel’s

performance fell below that standard. Harrington v. Richter, 131 S. Ct. 770, 785

(2011). “A state court's determination that a claim lacks merit precludes federal

habeas relief so long as fair-minded jurists could disagree on the correctness of the

state court’s decision.” Id. at 786 (internal quotation and citation omitted).

      Conti claims that the California Supreme Court erred when it denied his

ineffective assistance of counsel claim on collateral review. Where, as here, the

state court has not provided a reasoned decision for its denial, we must “perform an

independent review of the record to ascertain whether the state court decision was

objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)

(internal quotation and citation omitted). Conti asserts that the state court’s

determination of his Strickland claim may be overturned under AEDPA because

the California Supreme Court did not conduct an evidentiary hearing to determine

the extent of his skin disease at the time of the assaults. This, Conti argues,

“resulted in a decision that 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)(2). The California Supreme Court did not misinterpret Strickland. Its


                                           3
determination that an evidentiary hearing was unnecessary was not unreasonable.

Id.

      To prevail on his claim of ineffective assistance of counsel under Strickland,

Conti would need to show that his trial counsel’s performance was both deficient

and prejudicial. Strickland v. Washington, 466 U.S. 668, 686–93 (1984). His

counsel’s strategic choice not to obtain an expert opinion about Conti’s skin

condition satisfies neither of the prongs. See Harrington, 131 S. Ct. at 787. Conti

testified at trial that he did not walk around naked because he had “spots, boils,

[and] scar tissue” on his “buttocks, thighs, . . . and groin area” due to “[c]hronic

acne.” According to Conti, this testimony would have undermined the credibility

of the victims because it would have impeached their testimony that they did not

remember any distinguishing marks on his body. An attorney’s choice to impeach

a witness is a matter of trial strategy, see Gustave v. United States, 627 F.2d 901,

905 (9th Cir. 1980), and failing to impeach a witness on a clearly collateral matter

cannot be said to be outside of the “wide range” of reasonable professional

assistance, see Plascencia v. Alameida, 467 F.3d 1190, 1198–99 (9th Cir. 2006);

Bergman v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995). Conti’s convictions

do not necessitate a finding that the victims ever saw him nude, and Conti’s own

testimony placed the issue of his skin condition before the jury; his attorney’s


                                           4
choice not to expend funds to corroborate Conti’s testimony about this collateral

matter was not unreasonable.

      His counsel’s decision also did not prejudice the outcome of Conti’s trial.

"With respect to prejudice, a challenger must demonstrate ‘a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different.'" Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S.

at 694). This was a collateral matter, so all that was at stake was witness

credibility. The assaults took place several years before trial, so the jury would

likely give minimal weight to the victims’ inability to remember distinguishing

marks on Conti’s body. Additionally, Conti’s attorney did attack the credibility of

the witnesses by presenting expert testimony to show that one victim’s diary

entries had been fabricated. “A jury's credibility determinations are . . . entitled to

near-total deference.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004).

Defense counsel’s choice not to launch an additional attack on the witnesses’

credibility by impeaching their testimony as to the collateral matter of Conti’s skin

condition did not affect the outcome of his trial. The California Supreme Court did

not misinterpret Strickland and therefore its determination that an evidentiary

hearing was unnecessary was not “an unreasonable determination of the facts in

light of the evidence presented.” 28 U.S.C. § 2254(d)(2).


                                            5
      And, of course, § 2254(e)(1) cannot provide relief. If evidence of his skin

condition could not have affected his habeas claim in state court, presenting this

same evidence in federal court after an evidentiary hearing certainly would not

provide a “clear and convincing” reason to overturn the state court’s factfinding

process. 28 U.S.C. § 2254(e)(1).

      In his habeas petition in the district court, Conti also argued that his victims’

inconsistencies at trial made them incredible, and because their testimony

constituted the majority of the evidence against him, there was insufficient

evidence to support his conviction. On appeal, however, Conti argues for the first

time that the state court erred in holding that the evidence was sufficient to support

his conviction under Count 24 because the prosecution failed to prove every

element of the offense; he claims that the evidence put forth did not show that

Conti used force, as required by the statute. See Cal. Penal Code §§ 269(a)(5),

289(a). We will not address arguments that were not raised in the district court.

See, e.g., White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010).

      AFFIRMED.




                                           6
