Robert Hollenback v. Charles Ryan

667 F. App'x 636

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2016
• Docket: 13-17464
• Status: Unpublished

Opinion

MEMORANDUM ***

Robert Hollenback appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as petition challenging his Arizona conviction for molestation of a child. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and review de novo. Matylinsky v. Budge, 577 F.3d 1083, 1090 (9th Cir. 2009).

The state courts reasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when they held that trial counsel made a reasonable tactical decision not to request a lesser-included attempt jury instruction that conflicted with Hollenback’s defense that he “did not try to touch” the child. Defense counsel is not required to request instructions that are inconsistent with the defense. See Matylinsky, 577 F.3d at 1092; Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985).

The request to expand the certificate of appealability is denied.

AFFIRMED.

*** xhiS disposition is not appropriate for publication and is not precedent except as provided fay 9th Cir. R. 36-3.