Herzog v. Palmateer

80 F. App'x 606

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2003
• Docket: No. 02-36105; D.C. No. CV-00-06066-ALH
• Status: Published

Opinion

MEMORANDUM

**

Appellant Gary Herzog appeals the district court’s denial of his habeas petition. Herzog contends that his trial counsel acted ineffectively by not conducting a personal inspection of an FBI database used to determine the likelihood that he was the source of semen found on two of the victims. We disagree. Even assuming defense counsel should have investigated the database, Herzog has not established a reasonable probability that the outcome of his trial would have differed. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). All four victims identified Herzog as their attacker, matched his clothing to the outfit worn by their assailant, and furnished a number of intimate details about the interior of Herzog’s truck. Further, the prosecution introduced a considerable amount of probative, non-DNA physical evidence.

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.