                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 20 2014

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



                            FOR THE NINTH CIRCUIT


ANTHONY BRAVO,                                   No. 11-55557

              Petitioner - Appellant,            D.C. No. 2:10-cv-02687-PSG-E

  v.
                                                 MEMORANDUM*
RANDY GROUNDS, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted June 5, 2014
                              Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND, Chief District
Judge.**

       The district court properly denied California state prisoner Anthony Bravo’s

petition for a writ of habeas corpus, which is based on an ineffective assistance of

counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984).

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
                                         I.

      “When more than one state court has adjudicated a claim, we analyze the last

reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). An

exception to this rule arises when “the last reasoned decision adopted or

substantially incorporated the reasoning from a previous decision.” Id. at 1093.

That exception does not apply here where the California Court of Appeal did not

discuss or reference the opinion of the Superior Court.

                                         II.

      The Court of Appeal’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). By omitting the

language regarding a “reasonable probability,” the Court of Appeal impermissibly

held Petitioner to a heightened standard on the prejudice prong of the Strickland

inquiry. See 466 U.S. at 694.

                                        III.

      The Court of Appeal’s reliance on an improper standard as to the prejudice

prong of Petitioner’s ineffective assistance argument requires that this panel review

his claim de novo. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1243 (9th Cir.

2005). However, even under a de novo standard of review, Petitioner failed to

establish either prejudice or deficient performance under Strickland. Any failure
by defense counsel to investigate the potential witness or to present evidence of the

facts included in her declaration was harmless in light of the overwhelming

evidence of Petitioner’s guilt. This evidence includes Petitioner’s refusal to

comply with police orders over an extended period of time, the discovery of

firearms and ammunition in a locked safe located near where Petitioner had been

standing, the presence of men’s clothing in Petitioner’s size in the bedroom, and

bills and registration documents in Petitioner’s name in the bedroom. Moreover,

defense witness Jonathan Ortiz was less than credible—as Petitioner himself

acknowledges.

      As to Strickland’s deficient performance prong, “the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). Petitioner offers no evidence to suggest that

counsel’s decisions were not “based on professional judgment,” id. at 681, and

Petitioner therefore fails to meet his “heavy burden,” Murtishaw v. Woodford, 255

F.3d 926, 939 (9th Cir. 2001).

      AFFIRMED.
