                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 24 2015

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



                            FOR THE NINTH CIRCUIT


DANIEL OQUITA GUTIERREZ,                         No. 13-16849

              Petitioner - Appellant,            D.C. No. 4:12-cv-00712-DTF

 v.
                                                 MEMORANDUM*
RICHARD A. BOCK; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA; CHARLES L. RYAN,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  D. Thomas Ferraro, Magistrate Judge, Presiding

                          Submitted September 16, 2015**
                             San Francisco, California

Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,*** Senior
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 Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
        After a shooting at a crowded party, an Arizona jury convicted Daniel

Gutierrez on several counts of assault and one count of manslaughter. Gutierrez

filed a petition for a writ of habeas corpus in state court alleging ineffective

assistance of counsel. After that petition’s denial and several unsuccessful appeals,

Gutierrez filed a petition for a writ of habeas corpus in the district court. The

district court dismissed the petition and Gutierrez appeals. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

        Gutierrez argues his counsel’s decision not to call Jose Baldenegro as a

witness amounted to ineffective assistance. Gutierrez is not entitled to relief

because the state court reasonably concluded that, even if counsel’s performance

was deficient, Gutierrez had not “show[n] that the deficient performance

prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984);

28 U.S.C. § 2254(d)(1). Gutierrez’s DNA was on the gun used in the shooting and

Baldenegro’s account would have been contradicted by that of two other witnesses.

        AFFIRMED




        1
              The parties are familiar with the facts, so we will not recount them
here.
