                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 10 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHARLES W. WEBER,                               No.   16-35016

                Petitioner-Appellant,           D.C. No. 2:08-cv-01676-RSL

 v.
                                                MEMORANDUM *
STEPHEN SINCLAIR,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                            Submitted March 8, 2017**
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

      Charles Weber filed a 28 U.S.C. § 2254 habeas petition challenging his

Washington convictions for assault and unlawful possession of a firearm. The

district court noted that the ineffective assistance claim in Ground Five was

procedurally defaulted because Weber raised it for the first time in his untimely


      *
             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).
second personal restraint petition.     The court held, however, that Weber had

demonstrated “cause and prejudice” under Martinez v. Ryan, 566 U.S. 1 (2012),

excusing the default. Therefore, we review this claim de novo. The district court

denied Weber’s petition after conducting an evidentiary hearing on his claim of

ineffective assistance of trial counsel. Because the district court granted a certificate

of appealability with respect to that claim, we have jurisdiction pursuant to 28 U.S.C.

§ 2253(c). We affirm.

      1. The district court did not err in finding that counsel’s pretrial failure to pin

Weber down to a specific version of events was a reasonable strategic choice that

did not fall below an “objective standard of reasonableness.”             Strickland v.

Washington, 466 U.S. 668, 688 (1984).

      2. The district court also did not err in concluding that trial counsel was not

constitutionally ineffective because he failed to interview two potential alibi

witnesses before trial. Counsel made reasonable efforts to locate one witness.

Counsel had no reason before trial to search for the other, as there was no prior

indication that he had witnessed the crime.

      3. The district court did not err in finding that counsel’s investigation of the

victim’s statement that the perpetrator had a shaved head was not constitutionally

ineffective. The police report listed the suspect’s hair as brown, and the court found




                                           2
credible counsel’s testimony that he “did not see a significant distinction between a

‘shaved head’ and a ‘short to very short’ hairstyle.”

      4. Even assuming that trial counsel’s performance was deficient in failing to

investigate certain physical evidence, the district court did not err in concluding that

Weber failed to demonstrate “a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S.

at 695.

      5. Similarly, even assuming that counsel’s performance was defective in

failing to investigate the prevalence of a tattoo the victim claimed was worn by the

perpetrator and the Guero Loco nickname, the district court did not err in concluding

that no prejudice had been established. The victim twice identified Weber as the

perpetrator without looking at the tattoo.

      6. Nor was trial counsel ineffective for presenting an opening statement

without clearly presenting a “misidentification/alibi defense.” At the time of the

opening statement, counsel reasonably feared that the alibi witness might refuse to

testify. The record contradicts Weber’s argument that counsel failed to urge an alibi

defense in closing. As the district court found, counsel “discussed the alibi defense

at some length.”

      7. Weber’s claim that counsel fell below the constitutional minimum in his

cross-examination of police officers and the victim was also correctly rejected by


                                             3
the district court. The record reflects a competent cross-examination of the officers

and the victim.

      8. Weber’s argument that counsel should have called two alleged alibi

witnesses who submitted post-trial declarations also fails.           The district court

reasonably found that counsel had no reason at the time of trial to believe that either

had witnessed the crime.

      9.    Weber’s argument that counsel prevented him from testifying was

correctly rejected by the district court. Both Weber and counsel testified that,

although counsel advised Weber not to testify, he did not prevent Weber from doing

so.

      10. Weber next argues that counsel was constitutionally ineffective because

he failed to argue that Weber could not have been at the scene when the shooting

occurred. But, as the district court found, counsel in fact made this argument.

      11. Weber argues that counsel should have introduced evidence that he was

right-handed, to counter testimony that the shooter was left-handed.              But the

testimony at issue was that the shooter fired the gun with both hands.

      12. Finally, Weber argues that counsel was ineffective for failing to object to

misconduct by the prosecutor and contends that “this failure must be considered by

this Court when it considers whether cumulatively trial counsel was ineffective.”

The district court did not err in holding that this claim fails to satisfy the requirements


                                            4
of Martinez and cannot be reviewed as a stand-alone issue. Moreover, the district

court did not err in concluding that even when all the alleged errors of counsel,

including this one, are considered cumulatively, they do not constitute ineffective

assistance of counsel.

      AFFIRMED.




                                        5
