Gastile v. Borg

49 F. App'x 735

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2002
• Docket: No. 01-15309; D.C. No. CV-96-00773-FCD
• Status: Published

Opinion

MEMORANDUM

**

We reject Gastile’s appeal of the denial of his habeas petition. Because Gastile’s petition was pending before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, we do not apply the current version of 28 U.S.C. § 2254(d).¹ Nevertheless, even assuming (but not deciding) that counsel’s failure to present Dr. McEwen’s testimony was ineffective assistance, Gastile cannot demonstrate the required prejudice² because of the overwhelming evidence of guilt. Counsel was not ineffective in failing to challenge the statement on voluntariness grounds. To find the statement involuntary, we must find police coercion of some sort, and we can discern none.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 . Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

2 . Visciotti v. Woodford, 288 F.3d 1097, 1105 (9th Cir.2002).

3 . Clabourne v. Lewis, 64 F.3d 1373, 1379 (9th Cir.1995).