Alvary v. Cambra

211 F. App'x 647

Opinion

MEMORANDUM

**

Arthur Alvary, a California state prisoner, appeals from the district court’s judgment denying his 28 U.S.C. § 2254 petition challenging his convictions for second degree murder, attempted second degree murder, and being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Alvary contends that the district court erred by rejecting his contention that the deficient performance of his trial counsel was prejudicial to his defense.' Specifically, Alvary contends that, pursuant to United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), because he was “denied counsel at a critical stage,” and because his attorney “fail[ed] to subject the prosecution’s case to meaningful adversarial testing” at closing argument, prejudice must be presumed. We disagree.

While counsel’s performance clearly fell below an objective standard of reasonableness, the circumstances of this case do not warrant a presumption of prejudice. See Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Cronic, 466 U.S. at 658-59, 104 S.Ct. 2039. Accordingly, Alvary is required to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of his trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Upon review of the record, we conclude that Alvary has failed to make this showing. We therefore conclude that the California Court of Appeal’s decision denying Alvary’s ineffective assistance of counsel claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, and the district court properly denied the petition. See 28 U.S.C. § 2254(d); Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

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 9th Cir. R. 36-3.