                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 17 2015

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



                            FOR THE NINTH CIRCUIT


WESLEY YOUNG,                                    No. 13-56273

              Petitioner - Appellant,            D.C. No. 5:12-cv-00262-JST-
                                                 MRW
 v.

DOMINGO URIBE, Jr., Warden,                      MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                      Argued and Submitted October 19, 2015
                               Pasadena, California

Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.

      Wesley Young appeals a district court order denying his habeas corpus

petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

      The California Supreme Court’s decision to deny Young’s ineffective

assistance of counsel claim was not an unreasonable application of clearly



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
established law. 28 U.S.C. § 2254(d). To have been entitled to relief under

Strickland v. Washington, 466 U.S. 668 (1984), Young was required to show “both

that his counsel provided deficient assistance and that there was prejudice as a

result.” Harrington v. Richter, 562 U.S. 86, 104 (2011). A petitioner attempting to

show that his counsel's performance was deficient must overcome "a strong

presumption that counsel's representation was within the 'wide range' of reasonable

professional assistance. Id. And to show prejudice, he must demonstrate that

"[c]ounsel's errors [were] so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable." Id.

       The California Supreme Court could reasonably have determined that

Young’s trial counsel had strategic reasons not to call a gang expert.1 For example,

he may have chosen to focus on issues of substantive liability, such as Young’s

actions and intent on the night of the shooting, rather than on the sentence

enhancement for gang participation. Indeed, the weaknesses in the evidence

against Young—including inconsistent witness statements concerning whether he

climbed the fence to enter the party, confronted a party attendee, and fired a

       1
        Where, as here, “a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there is no
reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98. It is
our task to determine “what arguments or theories . . . could have supported . . . the
state court’s decision.” Id. at 102.

                                            2
gun—suggested that these were proper areas on which to focus the defense.

Additionally, Young’s lawyer may have thought it unwise to draw further attention

to Young’s potential participation in gang activities, which could have distracted

the jury from the central issues of liability and opened the door to further damaging

evidence against Young. Harrington, 562 U.S. at 108.

      The California Supreme Court could also have reasonably determined that

there was no prejudice from Young’s counsel’s decision not to call a gang expert.

Young’s counsel successfully brought out in trial that Young denied gang

membership in a police interview, that he had no gang tattoos, that he had a job,

and that he was going to college. Moreover, on cross-examination of the

government’s expert, he exposed possible gaps in the expert’s opinion that certain

evidence, such as the jail intake information and jail graffiti, supported a

conclusion that Young was a gang member. The state court could properly have

concluded that any added benefit from calling a defense gang expert would have

been insufficient to alter the outcome of the trial. This conclusion is especially

plausible in light of the other evidence against Young, including witness testimony

that he had previously carried guns to other parties, that he was known to be a

member of the C-9000 Crips, and that he regularly dressed in baby blue—the color

of the C-9000 Crips; and the evidence concerning the incident itself, showing that


                                           3
before the shooting, a group of mostly young men—some in gang colors, and at

least one armed—were called to a gas station, where they conspired to go to an

out-of-town party and assault an attendee who had previously beaten up Mario

Gray, a member of the Hoovers gang. Given these considerations, the California

Supreme Court could reasonably have concluded that there was no prejudice from

Young’s counsel’s decision not to call a gang expert. Harrington, 562 U.S. at 113.

      AFFIRMED.




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