                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 29 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GUADALUPE GONZALEZ,                             No.    17-35091

                Petitioner-Appellant,           D.C. No. 2:15-cv-02126-SI

 v.
                                                MEMORANDUM*
MARK NOOTH,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                       Argued and Submitted May 16, 2018
                                Portland, Oregon

Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.

      Guadalupe Gonzalez appeals the district court’s denial of his petition for

writ of habeas corpus under 28 U.S.C. § 2254. Because the parties are familiar

with the facts, we do not recite them here. We have jurisdiction pursuant to 28

U.S.C. § 1291 and 28 U.S.C. § 2253, and we affirm.

      We review de novo the district court’s denial of a habeas petition, and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
factual findings are reviewed for clear error. See Runningeagle v. Ryan, 686 F.3d

758, 766 (9th Cir. 2012). Because Gonzalez filed his habeas petition after April

24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) apply. Under AEDPA, federal habeas relief may not be granted

with respect to a judgment of a state court unless the adjudication of the claim

“(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); see also Harrington v. Richter, 562

U.S. 86, 100 (2011). “[A] state court decision is not unreasonable if ‘fairminded

jurists could disagree on its correctness.’” Davis v. Ayala, 135 S. Ct. 2187, 2199

(2015) (internal alteration omitted) (quoting Richter, 562 U.S. at 101)).

      Gonzalez argues that his trial counsel was ineffective by failing to object to

the sentencing judge’s consideration of an alleged expert’s opinions on child

molesters that were not in the record. To prevail on his claim, Gonzalez must

show that counsel’s performance was deficient and prejudicial. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a petitioner must

show that there is “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.



                                          2
      Even assuming that counsel’s performance was deficient, Gonzalez has

failed to show that there is a “reasonable probability” that but for the sentencing

judge’s consideration of the alleged expert’s opinions, the outcome of the

proceeding would have been different. Id. The record does not indicate that the

sentencing judge relied on the alleged expert’s opinions as the basis for the

sentence. Rather, the sentencing judge relied on the frequency of Gonzalez’s

sexual assault of his granddaughter and the fact that Gonzalez sexually assaulted

several other female minors within his family. The sentencing judge also

acknowledged that, although he was inclined to impose the maximum sentence of

225 months, he would instead adopt the prosecutor’s recommendation of 150

months. Under our “doubly deferential” review, Knowles v. Mirzayance, 556 U.S.

111, 123 (2009), the sentencing judge’s determination that Gonzalez failed to

establish prejudice was not an unreasonable application of Strickland. The district

court properly denied Gonzalez’s petition for writ of habeas corpus.

      AFFIRMED.




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