                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2015

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



                           FOR THE NINTH CIRCUIT


WILLIAM BELL,                                    No. 14-35536

              Petitioner - Appellant,            D.C. No. 6:12-cv-02367-ST

 v.
                                                 MEMORANDUM*
ROB PERSSON,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mossman, District Judge, Presiding

                             Submitted July 8, 2015**
                                Portland, Oregon

Before: N.R. SMITH and OWENS, Circuit Judges, and HAYES,*** District Judge.

      Appellant William Bell, an Oregon state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus. Pursuant to a plea agreement,

        *
             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).
        ***
             The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Appellant pled guilty to four counts of unlawful use of a firearm and one count of a

felon in possession of a firearm in exchange for the government dismissing three

counts of attempted murder. Appellant alleges that his guilty plea was not

knowing and voluntary, due to his trial counsel’s ineffective assistance in failing to

investigate his case. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.

      We review the district court’s denial of a habeas petition de novo. See Smith

v. Swarthout, 742 F.3d 885, 892 (9th Cir. 2014). Under the Antiterrorism and

Effective Death Penalty Act (AEDPA), habeas relief can only be granted if the

state court proceeding which adjudicated the claim 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). We review the Marion County Circuit Court’s post-conviction relief

decision in this matter, as it is “the ‘last reasoned state court decision’ addressing

[Appellant’s] claims.” Smith, 742 F.3d at 892 (citation omitted).

      In this case, Appellant contends that the Marion County Circuit Court’s

denial of his ineffective assistance of counsel claim was based on an “unreasonable


                                           2
determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). Appellant contends that his trial counsel

performed deficiently by failing to interview several witnesses. Appellant asserts

that, had these witnesses been interviewed, trial counsel would have advised

Appellant to reject the plea deal, and Appellant would have insisted on going to

trial.

         An ineffective assistance of counsel claim has two components. “First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. Where, as here, the petitioner

alleges that his trial counsel’s ineffective assistance resulted in a guilty plea that

was not knowing and voluntary, the petitioner must show a “reasonable probability

that, but for counsel’s [deficiency], he would not have pleaded guilty and would

have insisted on going to trial.” Premo v. Moore, 562 U.S. 115, 129 (2011); Hill v.

Lockhart, 474 U.S. 52, 59 (1985). Appellant has failed to demonstrate that the

circuit court unreasonably determined the facts in concluding that Appellant did

not satisfy the requirements of Strickland.


                                            3
      The record supports the following pertinent circuit court findings: (1)

Appellant failed to submit credible evidence demonstrating that trial counsel failed

to contact and interview all relevant witnesses; and (2) Appellant failed to submit

credible evidence demonstrating that there were relevant witnesses who would

have been able to offer credible and helpful testimony. First, three of the five

witnesses did not testify before the circuit court in support of Appellant’s post-

conviction petition. Any failure of the circuit court to consider their likely trial

testimony was not unreasonable.1 Second, the record supports the circuit court’s

finding that witness Eugene Robinson’s testimony would not have been helpful to

Appellant’s defense. Robinson’s post-conviction affidavit was consistent with his

own statements to police and did not provide Appellant with a defense. Finally, it

was not unreasonable to find that witness Kevin Smith’s post-conviction testimony

was not credible. The circuit court’s finding was based on the following factual

findings: (1) Smith was biased in favor of Appellant; (2) Smith was angry about

the length of Appellant’s sentence; and (3) Smith would be impeached by his own

prior inconsistent statements to police. The circuit court’s conclusion—that



        1
         Appellant does not contend that these witnesses would have provided him
with a defense. Instead, Appellant contends that these witnesses would have
impeached the credibility of two victims with respect to Appellant’s motive for
committing the offenses.

                                           4
Appellant failed to satisfy the requirements of Strickland—was not 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); see Strickland, 466 U.S. at 691

(“[W]hen a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.”). Accordingly, the

district court did not err in denying habeas relief.

      AFFIRMED.




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