                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 14 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL MADAYAG,                                 No. 09-17330

              Petitioner - Appellant,            D.C. No. 4:08-cv-04989-PJH

  v.
                                                 MEMORANDUM *
MICHAEL S. EVANS, Warden; A.
HEDGPETH; ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                             Submitted July 12, 2011 **
                             San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT, District
Judge.***



        *
             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 Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
       A jury in state court convicted Petitioner Michael Madayag, a California state

prisoner, of two counts of battery.1 Madayag was subsequently sentenced to two

concurrent terms of 25 years to life to run consecutively to his sentence for prior

convictions. He appeals the district court’s denial of his petition for a writ of habeas

corpus. We affirm.

       Madayag’s habeas petition raises three grounds upon which his trial counsel

was constitutionally ineffective: (1) the failure to call two prison inmates as defense

witnesses; (2) the failure to object to evidence of Madayag’s prior criminal

convictions; and (3) the failure to request a “defense of others” jury instruction. His

petition fails on all three grounds.

       First, the performance of Madayag’s trial counsel was not constitutionally

deficient because the decision not to have Lavea or Townsend take the witness stand

was an informed strategic choice. See Strickland v. Washington, 466 U.S. 668, 690

(1984) (holding that trial counsel’s informed strategic choices “are virtually

unchallengeable.”); Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)

(holding that trial counsel not required to interview witness where the potential

witness’ versions of events are fairly known to counsel). Regardless, trial counsel’s


       1
          The jury found Madayag to have committed battery on a prison guard and convicted
him of: (1) battery by a prisoner on a non-confined person pursuant to Cal. Penal Code § 4501.5;
and (2) battery with a serious bodily injury pursuant to Cal. Penal Code § 243(d).

                                               2
performance was not prejudicial because Lavea and Townsend’s testimony would not

have been consistent with the defense theory – that the prosecution’s case lacked

evidence of Madayag actually approaching and assaulting the prison guard.

Accordingly, there is no reasonable probability that had either Lavea or Townsend

testified the result would have been different. See Strickland, 466 U.S. at 697 (“If it

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”).

Second, Madayag was not prejudiced by his trial counsel’s failure to object to a trial

exhibit containing abstracts of judgment of his prior convictions because the mere fact

that the jury may have seen a list of Madayag’s prior convictions does not establish

a reasonable probability that the jury would have reached a different result. Id.

Lastly, Madayag’s trial counsel was not ineffective in failing to request a “defense of

others” jury instruction because he made a tactical decision not to seek jury

instructions contradicting Madayag’s theory at trial that there was no evidence of

Madayag actually approaching and assaulting the prison guard. See Strickland, 466

U.S. at 690; Williams v. Woodford, 384 F.3d 567, 611-12 (9th Cir. 2004) (finding that

defense counsel was not ineffective for failing to present evidence that contradicted

the primary defense theory).




                                          3
      In light of the foregoing, all of Madayag’s claims fail, and the cumulative error

doctrine cannot apply as a result. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th

Cir. 2002). Furthermore, the district court was not obligated to conduct an evidentiary

hearing as “the record refutes [Madayag’s] factual allegations or otherwise precludes

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Regardless, an

evidentiary hearing was not necessary as the existing record was sufficient to resolve

Petitioner’s claims. See Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398

(2011) (holding that habeas “review under § 2254(d)(1) is limited to the record that

was before the state court that adjudicated the claim on the merits”).

      AFFIRMED.




                                          4
