                                                                                        FILED
                           NOT FOR PUBLICATION                                          NOV 18 2010

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



                            FOR THE NINTH CIRCUI


STEPHEN RICHARD MILLER,                         No. 09-35984

             Petitioner-Appellant,              D.C. No. 3:08-cv-00620-MA

  v.
                                                MEMORANDUM*
MARK NOOTH,

             Respondent-Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                           Submitted November 3, 2010*
                                Portland, Oregon

Before: ALDISERT,*** W. FLETCHER and FISHER, Circuit Judges.




       *
             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 Ruggero J. Aldisert, Senior United States Circuit
Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation.
      Stephen Richard Miller appeals from the District Court’s denial of his 28

U.S.C. § 2254 Petition for Habeas Corpus. Miller presents a single claim of

ineffective assistance of trial counsel under the Sixth and Fourteenth Amendments,

contending that the Oregon post-conviction court unreasonably applied the clearly

established law of Strickland v. Washington, 466 U.S. 668 (1984). We affirm.

      Miller contends that he was denied effective assistance of trial counsel

because his counsel (1) failed to request a lesser-included offense jury instruction

and (2) failed to communicate properly with him regarding that decision. We have

found ineffective assistance of counsel for failing to request a jury instruction in

situations in which there was not even a plausible strategic explanation for

counsel’s failure to request the instruction. E.g., United States v. Alferahin, 433

F.3d 1148, 1161 (9th Cir. 2006). Here, in comparison, not only is there a plausible

explanation, there is an actual explanation: one of the attorneys averred that, after

consulting with Miller, they jointly made a strategic decision to pursue an “all-or-

nothing” approach to obtain an outright acquittal. Such an approach was

compatible with the law and the evidence presented at trial. Regarding the alleged

failure to communicate, Miller has offered no evidence to rebut the post-conviction

court’s factual finding that the decision to forgo requesting a lesser-included




                                           2
offense instruction was jointly made by Miller and his counsel. Accordingly, we

hold that Miller was not denied effective assistance of counsel.

      Because we determine that counsel’s performance was not deficient, we do

not reach Strickland’s prejudice prong. See, e.g., Butcher v. Marquez, 758 F.2d

373, 377 (9th Cir. 1985).

      We hold that the Oregon post-conviction court did not unreasonably apply

the clearly established law of Strickland v. Washington, and we therefore affirm the

District Court’s denial of Miller’s Petition for Habeas Corpus.

AFFIRMED.




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