Ernest Vaden v. D. Runnels , 425 F. App'x 662 ( 2011 )

FILED
NOT FOR PUBLICATION APR 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERNEST LEE VADEN, No. 10-15029
Petitioner - Appellant, D.C. No. 2:06-cv-01733-JAM-
GGH
v.
D. L. RUNNELS, Warden; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 10, 2011
San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.
Petitioner-Appellant Ernest Lee Vaden (Vaden) challenges the district
court’s denial of his federal habeas petition. Vaden asserted a claim based on
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1984). Additionally, Vaden raised an uncertified issue concerning the trial
judge’s failure to appoint substitute counsel to present Vaden’s claim that his trial
counsel was ineffective.
1. We agree with the district court that the state court did not unreasonably
apply Strickland. “[A] defendant claiming ineffective counsel must show that
counsel’s actions were not supported by a reasonable strategy and that the error
was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). The state
court did not unreasonably apply Strickland, because as it observed, the medical
records were not especially probative regarding Vaden’s intoxication defense. See
Strickland, 466 U.S. at 689.
2. The district court was correct in denying habeas relief for Vaden’s claim that
counsel was ineffective for failing to call an expert witness to support his claim of
intoxication. Assuming, without deciding, that counsel’s performance was
deficient, Vaden failed to establish prejudice, i.e., “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. As the magistrate judge noted, Vaden
did not provide a declaration from any expert to support his claim that Activan
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increased his intoxication. This lack of supporting documentation precludes a
finding of prejudice. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001).
3. We do not address Vaden’s uncertified claim, because he failed to
“ma[k]e a substantial showing of the denial of a constitutional right” to warrant
issuance of a certificate of appealability. Rhoades v. Henry, 598 F.3d 511, 518
(9th Cir. 2010) (citation omitted).
AFFIRMED.
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