                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                            JUN 05 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

 JOHN W. BERGE, III,                                    No. 11-35428

                Petitioner - Appellant,                 D.C. No. 3:05-cv-00290-RRB

   v.
                                                        MEMORANDUM *
 MARC ANTRIM,

                Respondent - Appellee,

 FRANK LUNA,

                Respondent - Appellee.

                    Appeal from the United States District Court
                              for the District of Alaska
                  Ralph R. Beistline, Chief District Judge, Presiding

                          Argued and Submitted May 22, 2013
                                 Anchorage, Alaska

Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.

        Alaska state prisoner John W. Berge, III, appeals the district court’s denial

of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We affirm.




        *
           This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Berge waived his claim that police obtained his confession in violation of

his Sixth Amendment right to counsel when trial counsel failed to press the state

trial court for a ruling on this issue. Failure to press for a ruling constitutes

forfeiture of the claim under Alaska state law. See, e.g., Marino v. State, 934 P.2d

1321, 1327 (Alaska Ct. App. 1997). Procedural default under state law is an

independent and adequate state ground for the Alaska Court of Appeals’ denial of

this claim, thus barring our review. Coleman v. Thompson, 501 U.S. 722, 729

(1991), superseded by statute on other grounds, 28 U.S.C. § 2254(b)(2). Even

were we to reach the merits of this claim, Berge concedes that there is no clearly

established federal law on point.

      2. The Alaska Court of Appeals’ denial of two of Berge’s ineffective

assistance of counsel claims was not an unreasonable application of Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984).

          (a) Even if counsel had pursued a ruling on the Sixth Amendment issue,

the motion would have been denied. First, the Alaska Court of Appeals recognized

there is a split in authority on when the right to counsel attaches. Second, even if

Berge pressed for a ruling on this issue, the Alaska Court of Appeals did not

unreasonably apply Patterson v. Illinois, 487 U.S. 285, 296–97 (1988), when it




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concluded that, even assuming the right to counsel had attached, Berge waived that

right.

            (b) When defense counsel moved to have Berge’s right-to-silence

statements suppressed in full, the trial court denied the motion. It was not

objectively unreasonable for the state court to conclude that Berge failed to show

ineffective assistance of counsel where counsel could have thereafter made a

tactical decision to allow the jury to hear portions of Berge’s statements, because

those statements bolstered Berge’s claim of innocence. Moreover, it was also not

objectively unreasonable for the state court to conclude that, after the statements

were admitted, Berge’s counsel could not have challenged the prosecutor’s cross-

examination of Berge on those statements.

         3. Berge’s last ineffective assistance of counsel claim is waived for failure

to raise it in the amended § 2254 petition. See Lacey v. Maricopa Cnty., 693 F.3d

896, 928 (9th Cir. 2012). Even if not waived, the Alaska Court of Appeals’

conclusion that counsel was not incompetent for failure to hire a ballistics expert

was not an unreasonable application of Strickland. The state court concluded

reasonably that, even if ballistics evidence could have bolstered counsel’s

arguments to the jury about the implausibility of Berge’s confession, the State

conceded it could not prove the range or distance at which Taylor was shot.


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Instead, the prosecutor’s theory focused on the details of Berge’s confession (e.g.,

he described shooting Taylor with four bullets before the body was found), not

ballistics. Where defense counsel sought to prove Taylor was still alive at the time

of Berge’s confession, as well as raise other implausibilities including ballistic

evidence, the state court’s finding that Berge did not overcome the presumption of

competent counsel was not objectively unreasonable.

      AFFIRMED.




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