                                                                              FILED
                               NOT FOR PUBLICATION
                                                                               JAN 13 2014

                        UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT

 OSCAR RODRIGUEZ,                                   No. 10-55104

            Petitioner-Appellant,                   D.C. No. 06-cv-00878-VAP-MAN

   v.

 DANIEL PARAMO, WARDEN                                MEMORANDUM*

            Respondent-Appellee.


                       Appeal from the United States District Court
                           for the Central District of California
                       Virginia A. Phillips, District Judge, Presiding

                                Submitted August 28, 2013**
                                   Pasadena, California

Before:          GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.***


        Appellant Oscar Rodriguez appeals the district court's denial of his 28 U.S.C.


        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 Ivan L. R. Lemelle, District Judge for the U.S. District
        ***

Court for the Eastern District of Louisiana, sitting by designation.
                                             1
§ 2254 habeas petition, which challenges his conviction for second degree murder on

a theory of ineffective assistance of counsel. We review the district court's denial of

Appellant's habeas petition de novo, Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004), and affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996, a petition for

habeas corpus relief from judgment of a state court cannot be granted with respect to

any claim that was adjudicated on the merits in state court unless the state court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). In order to prevail on an ineffective assistance of counsel

claim, a defendant must show (1) that his/her counsel’s performance was deficient and

(2) that such deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). The standard for deficient performance is deferential. “There is a

‘strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.’ ” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998)

(quoting Strickland, 466 U.S. at 689). If the petitioner fails to establish either prong

of the Strickland test, relief cannot be granted. Strickland, 466 U.S. at 700.

      Here, Appellant contends that his state appellate counsel performed deficiently

during direct review of his conviction. A jury found Appellant guilty of second degree


                                           2
murder. The conviction was based in part on the legal theory in People v. Johnson, 18

Cal. Rptr. 2d 650 (Cal. Ct. App. 1993), which held that violations of § 2800.2 of the

California Vehicle Code are inherently dangerous felonies for the purposes of the

felony-murder rule. Appellant contends that his counsel's failure to challenge the

validity of Johnson on direct appeal constituted ineffective assistance counsel because

in People v. Howard, 104 P.3d 107 (Cal. 2005), issued several years after the state

appellate court affirmed Appellant's conviction, the California Supreme Court held

that violations of a subsequent version of § 2800.2 are not inherently dangerous

felonies for purposes of the felony-murder rule. Howard, 104 P.3d at 113-14.

      The decision to not challenge Johnson did not constitute deficient

representation. The holding in Johnson, in fact, is still law. The Howard court

explicitly refrained from deciding whether “Johnson was correct, because in 1996,

three years after Johnson was decided, the Legislature amended section 2800.2 to

add subdivision (b).” Howard, 104 P.3d at 112 (citation omitted). That

amendment “very broadly” expanded the statute's application to “include any flight

from an officer during which the motorist commits three traffic violations that are

assigned a ‘point count’ under [the California Vehicle Code], or which results in

‘damage to property.’ ” Id. The California Supreme Court held that violations of §

2800.2 could no longer predicate felony-murder “because subdivision (b) greatly


                                          3
expanded the meaning of the quoted statutory phrase to include conduct that

ordinarily would not be considered particularly dangerous.” Id. at 113. Moreover,

as each court reviewing Appellant's petition explained at length, the expanded

version of § 2800.2 took effect after the acts for which Appellant was convicted

and was not relied on to support his conviction. Therefore, any contention that

Appellant's counsel performed deficiently for failing to challenge Johnson is an

assertion that counsel performed deficiently for deciding not to challenge what

remains the law today. We cannot hold that such a decision falls outside of “the

wide range of reasonable professional assistance.” Babbitt, 151 F.3d at 1173

(quoting Strickland, 466 U.S. at 689).

      Accordingly, the district court properly found that Appellant's claim of

ineffective assistance of counsel failed to satisfy the relevant standards under

Strickland.

      AFFIRMED.




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