Loveland v. California

21 F. App'x 621

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2001
• Docket: No. 99-56076; D.C. No. CV-97-00750-RMB
• Status: Published

Opinion

MEMORANDUM

**

Christopher Loveland appeals the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We granted a certificate of appealability as to whether Loveland’s trial counsel’s failure to interview two percipient witnesses constituted ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), and affirm.

To prevail under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Loveland must demonstrate that his “counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687. Loveland cannot prove prejudice. Even if it was deficient performance for Loveland’s counsel not to interview the Butterfields, their additional testimony would not have affected the outcome. First, the Butterfields did not witness the entire incident; rather, they saw the struggle after the first volley of gunfire. Second, although they did not see a gun in Loveland’s hand, their declarations are consistent with Michael Butterfield’s trial testimony that he did not “notice” Love-land’s hands. Third, the Butterfields’s declaration that the trial re-enactment was nothing like what they had witnessed lacks probative value because they did not witness the entire altercation and it is completely devoid of detail. Fourth, Michael Butterfield’s testimony at trial, which he has not recanted in his declaration, is entirely consistent with the prosecution’s theory. Because Loveland was not prejudiced by his counsel’s failure to interview the Butterfields, we affirm the district court.

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.