                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 13 2013

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



                             FOR THE NINTH CIRCUIT


REYNANTE PRE,                                      No. 12-55468

               Petitioner - Appellant,             D.C. No. 3:07-cv-00890-W-WMC

  v.
                                                   MEMORANDUM*
V. M. ALMAGER, Warden and BILL
LOCKYER, Attorney General of the State
of California,

               Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                 Thomas J. Whelan, Senior District Judge, Presiding

                      Argued and Submitted November 5, 2013
                               Pasadena, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.

       Petitioner, Reynante Pre, appeals the district court’s denial of his petition for

a writ of habeas corpus.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Pre challenges the California Court of Appeal’s determination that his

torture conviction was supported by sufficient evidence. The California Court of

Appeal held that “[a] reasonable jury could have concluded [that the] injuries were

inflicted when [the victim] was unconscious, that is, during a period when Pre

could have left the apartment if his intent had only been to take her purse or to

defend himself against her attack and that these injuries were inflicted for the

purpose of inflicting severe pain for revenge or Pre’s sadistic pleasure.” People v.

Pre, 11 Cal. Rptr. 3d 739, 745 (Ct. App. 2004). Given the undisputed fact that Pre

choked his victim until she was unconscious, remained in her apartment and bit her

ear causing injuries that required one hundred stitches, and once again choked

Rose until she was unconscious a second time, the California Court of Appeal’s

determination that the evidence was sufficient to support Pre’s torture conviction

was not “contrary to, or . . . an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” nor was it

“based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-(2).

      Pre’s ineffective assistance of counsel claim based on his trial counsel’s

failure to interview the victim fails because Pre offers no proof that his trial

counsel failed to interview the victim, nor does Pre offer any evidence of what an

interview with the victim would have yielded that would have been beneficial to


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his defense. Moreover, Pre’s confession was videotaped and offered as evidence at

trial by the prosecution. Therefore, the California Court of Appeal’s decision was

not “unreasonable” because Pre did not satisfy Strickland’s prejudice prong, which

requires “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 28 U.S.C. § 2254(d)(1)-(2);

Strickland v. Washington, 466 U.S. 668, 694 (1984).

      Finally, Pre’s ineffective assistance of counsel claim based on his trial

counsel’s failure to object to Jury Question Three likewise fails because Pre did not

show that had his trial counsel objected to the jury question, there would have been

“a reasonable probability that . . . the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Pre cannot meet the highly deferential

standard required by the combination of 28 U.S.C. § 2254(d)(1)-(2) and Strickland.

See Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.”) (internal quotation marks and citations omitted).

      AFFIRMED.




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