                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 07 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ALEÈANDER GABAY,                                 No. 09-56268

             Petitioner-Appellant,               D.C. No. 2:05-cv-00676-SJO-JC

  v.
                                                 MEMORANDUM *
JEANNE S. WOODFORD, Director,
California Department of Corrections,

             Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                     Argued and Submitted February 14, 2011
                              Pasadena, California

Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.

       Alexander Gabay appeals the district court's denial of his 28 U.S.C. y 2254

petition for writ of habeas corpus. Exercising jurisdiction under y 2253, we affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
      Gabay was convicted in state court of second degree murder. After his

conviction was affirmed on direct appeal, Gabay filed a habeas petition with the

California Supreme Court which was denied without comment. He then filed a

y 2254 petition in federal court. The district court dismissed his petition, but

granted a certificate of appealability on two issues: whether he was denied

effective assistance of pretrial counsel; and whether he was denied effective

assistance of trial counsel.

      We review a district court's denial of habeas relief de novo. See Nunes v.

Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003). Because the California Supreme

Court's denial of habeas relief constitutes an adjudication on the merits, see

Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011), Gabay can obtain relief only

if the state court's decision 'was based on an unreasonable determination of the

facts in light of the evidence presented' or was 'contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.' 28 U.S.C. y 2254(d)(1), (2).

      To prevail on an ineffective assistance of counsel claim, Gabay must

demonstrate that: (1) counsel's performance was objectively unreasonable, and (2)

there was prejudice resulting from that performance. Moormann v. Ryan, 628 F.3d

1102, 1106 (9th Cir. 2010). To establish prejudice, a defendant must 'show that


                                           2
there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.' Stricµland v. Washington,

466 U.S. 668, 694 (1984).

      Gabay argues that his pretrial counsel labored under a conflict of interest

because counsel had been intimate with the victim, pursued a sexual relationship

with a potential witness, and was engaged in criminal activity related to the crime

for which Gabay was convicted. Gabay contends counsel failed to call two

witnesses to a pretrial hearing because of these conflicts, and that prejudice should

accordingly be presumed. We disagree. Clearly established federal law, as

determined by the Supreme Court, has presumed prejudice based on attorney

conflicts only in the context of joint representation. See Earp v. Ornosµi, 431 F.3d

1158, 1184 (9th Cir. 2005). The California Supreme Court could have reasonably

concluded that personal conflicts did not require that prejudice be presumed. See

id. at 1184 & n.23.

      Nor has Gabay demonstrated actual prejudice with respect to pretrial

counsel's conduct. There is no reasonable probability that the result of his pretrial

hearing would have been different had counsel called the two potential witnesses

because the evidence presented established 'reasonable or probable cause' to hold

Gabay over for trial regardless of any exculpatory testimony. See People v. Clarµ,


                                           3
253 P.2d 510, 513 (Cal. App. 1953) (citing Cal. Penal Code y 872). Further,

Gabay has not established that pretrial counsel's failure to engage in plea

bargaining was prejudicial because he has not demonstrated that the government

was willing to offer, and he was willing to accept, a favorable plea bargain. See

Burger v. Kemp, 483 U.S. 776, 785 (1987); Jones v. Wood, 114 F.3d 1002, 1012

(9th Cir. 1997).

      Gabay also argues that his trial counsel was ineffective for failing to: (1)

engage in plea bargaining; (2) seeµ dismissal of the charges based on pretrial

counsel's conflicts; and (3) obtain testimony from two potentially exculpatory

witnesses. For the same reason noted supra, Gabay has not demonstrated prejudice

with respect to trial counsel's failure to plea bargain. Trial counsel's failure to

seeµ dismissal of the charges was also non-prejudicial because the charges would

have been simply re-filed. See Cal. Penal Code y 999.

      Trial counsel's failure to interview or call two potential witnesses presents a

closer issue, but the California Supreme Court could have reasonably determined

that counsel's failure did not prejudice Gabay. See Richter, 131 S. Ct. at 786 ('A

state court's determination that a claim lacµs merit precludes federal habeas relief

so long as fairminded jurists could disagree on the correctness of the state court's

decision.' (quotation omitted)).


                                           4
      According to their affidavits, the two witnesses would have testified that

Gabay's girlfriend, Oxana Meshµova, confessed to the murder and provided details

regarding the victim's response to strangulation. This testimony would not have

cleared Gabay. There was no dispute that both Gabay and Meshµova were present

at the scene of the murder and it was clear that the victim was µilled by a gunshot

wound. The jury specifically found that Gabay personally discharged a firearm--a

finding which the affidavits do not undermine. Although one affiant avers that

Meshµova showed unidentified 'other girls . . . the gun' after the murder, Gabay

admitted that he dismantled the murder weapon. Further, although Gabay claimed

that Meshµova carried a gun into the victim's apartment in her purse, video footage

from an apartment building security camera did not show Meshµova carrying a

purse into the building. A friend of Gabay's testified that he saw Gabay carrying a

gun on the drive to the victim's apartment.

      In light of this and other powerful evidence against Gabay, a state court

conclusion that Gabay was not prejudiced by trial counsel's failure to interview




                                          5
and call these two potential witnesses was at least reasonable. Accordingly, Gabay

is not entitled to habeas relief.1

       AFFIRMED.




       1
       In a footnote, Gabay conclusorily asserts two other potential ineffectiveness
claims. Because neither claim is sufficiently developed or supported with legal
and record citations, we will not consider them. See Maldonado v. Morales, 556
F.3d 1037, 1048 n.4 (9th Cir. 2009).

                                         6
                                                                            FILED
Gabay v. Woodford, No. 09-56268                                              MAR 07 2011

                                                                        MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting in part:                                U.S . CO U RT OF AP PE A LS




      I respectfully dissent from the majority's holding that it was not þan

unreasonable application,þ 28 U.S.C. y 2254(d)(1), of Stricµland v. Washington,

466 U.S. 668, 687 (1984), for the California Supreme Court to conclude that the

failure of Alexander Gabay's trial counsel to interview two potential witnesses did

not prejudice him. I concur in all other respects.

      Two people--Gabay and Oxana Meshµova--entered an apartment, and its

occupant was murdered. It was clear that one or both of them committed the

murder, but the evidence at trial as to which one was the actual µiller was less

clear. The state indicted both Gabay and Meshµova. But the state eventually tried

only Gabay, with Meshµova testifying against him in exchange for immunity.

Gabay's defense theory was that Meshµova, not Gabay, had committed the murder.

      During the course of his investigation, Gabay's trial counsel learned that, on

two different occasions, Meshµova had told two different people that

she--Meshµova--had committed the murder. Inexplicably, Gabay's trial counsel

declined even to interview those witnesses. Gabay's trial counsel plainly failed to

adhere to his þduty to maµe reasonable investigations.þ Id. at 691.

      I would hold also that the California Supreme Court unreasonably concluded

that this failure caused no prejudice. The evidence was overwhelming that the
murder occurred while Gabay and Meshµova were in the apartment. But the

evidence implicating Gabay instead of Meshµova consisted primarily of

Meshµova's own unchallenged testimony. But Meshµova earlier had confessed to

two different witnesses:

•     The first witness swore in an affidavit that Oxana Meshµova þsaid it had

      been her who had µilled [the victim].þ

•     The second witness stated under oath that þOxana confessed to [a third

      party] and the other girls that she µilled [the victim] and later showed them

      the gun.þ

Had Gabay's trial counsel followed up on Meshµova's unsolicited confessions, the

information he liµely would have discovered would have severely compromised

Meshµova's credibility and cast serious doubt on whether Gabay had shot the

victim. In these circumstances, even mindful of the strong deference due under

AEDPA, Harrington v. Richter, 131 S. Ct. 770 (2011), a reasonable jurist would

have to conclude that there is þa reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different,þ

Stricµland, 466 U.S. at 694.

      I therefore dissent in part.




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