                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 09 2010

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




                           FOR THE NINTH CIRCUIT



 DONOVAN PHIPPS,                                      No. 09-15790

              Petitioner-Appellant,                   D.C. No. 07-CV-0087WBS-CHS

      v.
                                                      MEMORANDUM *
 MIKE EVANS, et al.,

              Respondents-Appellees.


                    Appeal from the United States District Court
                        for the Easter District of California
                    William B. Shubb, District Judge, Presiding

                           Submitted November 1, 2010 **
                             San Francisco, California

Before:      HALL and THOMAS, Circuit Judges, and LASNIK,
             Chief District Judge.***




  *
      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).
  ***
     The Honorable Robert S. Lasnik, Chief United States District Judge for the
Western District of Washington, sitting by designation.
      Donovan Phipps, an inmate in the California prison system, appeals from a

final order of the United States District Court denying his petition for writ of

habeas corpus. Phipps contends that his trial counsel was ineffective in a number

of ways and seeks an evidentiary hearing at which he hopes to question counsel

regarding his litigation choices to “flesh out” his claims.

      Based on an independent but deferential review of the record (Pirtle v.

Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)), it was not unreasonable for the state

court to deny Phipps’ ineffective assistance of counsel claim. Phipps has not

shown that (1) counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). “Our review of counsel’s performance for constitutional

deficiency ‘must be highly deferential’ and should include every effort ‘to

eliminate the distorting effects of hindsight[.]’” Earp v. Ornoski, 431 F.3d 1158,

1174 (9th Cir. 2005) (alteration in original) (quoting Strickland, 466 U.S. at 689).

      While a second-degree murder conviction arising out of a vehicular accident

is not the norm, the outcome of a trial does not determine whether defense counsel

was “effective” or “ineffective.” See Strickland, 466 U.S. at 689. The record



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shows that defense counsel conducted a reasonable investigation and pursued a

trial strategy based on the evidence presented by the eyewitnesses and medical

professionals. The fact that Phipps, with the benefit of hindsight, wishes that other

tactics had been attempted and/or other witnesses had been called does not

establish a colorable claim for habeas relief under Strickland. The district court

therefore did not abuse its discretion in denying the habeas petition without

conducting an evidentiary hearing. See West v. Ryan, 608 F.3d 477, 490 (9th Cir.

2010).

         AFFIRMED.




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