                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 18 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CARRIE J. HALE MCCOIN,                            No. 09-35560

               Petitioner - Appellant,            D.C. No. 1:07-cv-01171-CL

  v.
                                                  MEMORANDUM *
MARVIN FICKLE,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                         Argued and Submitted June 8, 2010
                                 Portland, Oregon

Before: FERNANDEZ, McKEOWN and PAEZ, Circuit Judges.

       Carrie Hale McCoin 1 appeals the district court’s denial of her petition for a

writ of habeas corpus, claiming ineffective assistance of counsel at trial. McCoin

was found guilty except for insanity of two counts of Assault in the Second Degree


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
       Although Petitioner uses her married name, McCoin, in the post-conviction
proceedings, she used her maiden name, Hale, in her state court proceedings.
and one count of Burglary in the First Degree. McCoin argues that her trial

counsel was ineffective because he (1) failed to call Gus Willemin to testify as a

witness on her behalf and (2) entered a defense of guilty except for insanity

without McCoin’s permission. The post-conviction court and the federal district

court rejected McCoin’s petition on the merits, and McCoin appeals. We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

      First, McCoin’s counsel testified that he did not call Willemin at trial

because his testimony would have been “cumulative and less effective” than the

testimony of witness for the defense Deputy Brown. Indeed, Deputy Brown

observed the bruises on McCoin’s entire body shortly after the incident in question,

and she wrote down her observations as part of her regular duties when conducting

a visual, unclothed exam. Although Willemin also claims to have observed

McCoin’s bruises, he could only have seen the bruises visible while McCoin was

dressed and it is unclear if he was relying on memory alone. Under these

circumstances, McCoin failed to rebut the presumption that her counsel’s decision

not to call Willemin at trial was “sound trial strategy.” Strickland v. Washington,

466 U.S. 668, 689 (1984) (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Because McCoin cannot show deficient performance by her counsel in failing to

call Willemin as a witness, the district court properly denied habeas relief on this


                                           2
claim. See id. at 697 (holding that a court need not examine the prejudice suffered

by defendant due to alleged deficiencies if defendant makes an insufficient

showing that counsel’s performance was deficient and vice versa).

      Second, McCoin’s counsel testified that, although McCoin pled not guilty,

she authorized him to raise a fall-back defense of guilty except for insanity. The

post-conviction court found McCoin’s counsel to be credible, and McCoin failed to

present evidence that the post-conviction court’s finding was objectively

unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). We therefore

affirm the denial of habeas relief on this claim.

      AFFIRMED.




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