Alvarado v. Small

109 F. App'x 997

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 30, 2004
• Docket: No. 03-17035
• Status: Published

Opinion

MEMORANDUM

**

The state court’s denial of Avarado’s ineffective assistance of counsel claim was not contrary to, nor an unreasonable application of, clearly established Supreme Court law.¹ Counsel’s conduct is redolent of tactical judgments because, as the state court said, there were problems of admissibility, the girlfriend’s changing stories, and the risk that evidence of the claimed prior beatings could hurt rather than help the defense’s case.

We also deny Avarado’s sufficiency of the evidence claims. The state court decision was not contrary to, nor an unreasonable application of, Jackson v. Virginia² because, as the state court said, a reasonable person could conclude from the evidence that Avarado “armed himself in anticipation of a fist fight,” planning to kill people he knew were unarmed when they bothered him again. Jurors could conclude otherwise, but the “any rational trier of fact” test in Jackson was not contravened.³

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . 28 U.S.C. § 2254(d)(1).

2 . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. , 61 L.Ed.2d 560 (1979).

3 . Id. at 319.