                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 15 2015

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



                            FOR THE NINTH CIRCUIT


JOSE ACENCION LEON,                              No. 14-15341

              Petitioner - Appellant,            D.C. No. 4:11-cv-00129-BPV

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN and STATE OF
ARIZONA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Bernardo P. Velasco, Magistrate Judge, Presiding

                             Submitted May 11, 2015**
                              San Francisco, California

Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Jose Leon appeals the district court’s order denying his 28 U.S.C. § 2254

petition. Leon generally asserts ineffective assistance of counsel, in that counsel

generally failed to prepare for and challenge the testimony of the state’s expert

        *
             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).
witness, who testified regarding the behavior of child sexual abuse victims. We

affirm.

      We review the district court’s denial of Leon’s § 2254 petition de novo.

Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). A district

court may not grant a § 2254 petition unless the state court’s adjudication of a

petitioner’s claim

             (1) resulted in a decision that was contrary to, or involved
             an unreasonable application of, clearly established
             Federal law, as determined by the Supreme Court of the
             United States; or (2) resulted in a decision that was based
             on an unreasonable determination of the facts in light of
             the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). To show ineffective assistance of counsel, Leon must

demonstrate that (1) his counsel’s performance was deficient; and (2) counsel’s

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). We must indulge a “strong presumption of competence” on the

part of counsel. Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). Additionally,

“[t]here are countless ways to provide effective assistance in any given case.”

Strickland, 446 U.S. at 689. Because Strickland’s test is already deferential to

counsel, our review under § 2254 of the Arizona Court of Appeals—which




                                          2
expressly adopted the decision of the Arizona Superior Court—is “doubly

deferential.” Pinholster, 131 S. Ct. at 1403 (internal quotation marks omitted).

      Leon contends that his counsel’s performance was deficient, because he

failed to interview the government’s expert witness and had no strategic reason for

failing to call an expert witness of his own or pursuing a different strategy on

cross-examination. “[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 446 U.S. at 690-91. Our inquiry into whether counsel’s

performance was deficient is an objective one, so we must “affirmatively entertain

the range of possible reasons . . . counsel may have had for proceeding as they

did.” Pinholster, 131 S. Ct. at 1407 (internal quotation marks omitted).

      The record in this case demonstrates that the Arizona Court of Appeals’

decision was not unreasonable. While counsel did not interview the expert

witness, counsel investigated the government’s expert, reviewed similar cases in

which the expert testified, and reviewed the substance of the expert’s testimony in

those cases. At trial, counsel chose to cross-examine the expert regarding her

testimony (which was not specific to this victim) about the tendency of child


                                           3
sexual abuse victims to recant their accusations and delay their disclosure, rather

than call a rebuttal expert. In light of the strong presumption of competence, it was

not an unreasonable application of Strickland for the state court to conclude that

counsel’s chosen strategy was supported by a sufficient investigation.

Accordingly, the district court did not err in concluding that Leon failed to

demonstrate that the Arizona Court of Appeals’ determination that he did not

satisfy the first prong of Strickland was contrary to, or an unreasonable application

of, Supreme Court precedent.

      Even if Leon had demonstrated that his counsel’s performance was

constitutionally deficient, he has not shown that the state court’s determination,

that he was not prejudiced thereby, was an unreasonable application of Strickland.

To determine whether Leon was prejudiced in this context, “the question is

whether there is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.

Although the case turned on the victim’s credibility, it was not unreasonable to

conclude that, had counsel done what Leon asserts he was required to do, there was

not a reasonable probability that the jury would both refuse to credit the expert’s

testimony and reject the victim’s testimony. Accordingly, the district court did not

err in denying Leon’s petition.


                                           4
AFFIRMED.




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