Galvan v. Czerniak

141 F. App'x 579

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2005
• Docket: No. 04-35499
• Status: Published

Opinion

MEMORANDUM

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We affirm the district court’s denial of Galvan’s habeas petition.

In denying Galvan’s ineffective assistance claim for his counsel’s failure to call two witnesses, the state court did not unreasonably apply, or act contrary to, Strickland v. Washington.1 Galvan presented no evidence to the state court of what the two witnesses would have testified to, so he showed no prejudice.

The district court did not err in refusing to expand the record to include the two affidavits from the two witnesses, because they were presented for the first time in federal court, and Galvan had neither presented them in state court nor justified the failure to do so. Galvan has not demonstrated that the affidavits satisfy the exceptions for new evidence under 28 U.S.C. § 2254(e)(2). We are bound by Holland v. Jackson² as well as Rule 7 of the Rules Governing Section 2254 Cases.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 . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

2 . Holland v. Jackson, 542 U.S. 649, 124 S.Ct. , 159 L.Ed.2d 683 (2004).

3 . See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005) (under Holland, petitioner must comply with § 2254(e) in order to expand the record under Rule 7).