Joseph Demagnus v. W.L. Montgomery , 581 F. App'x 673 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH OLIVER DEMAGNUS, No. 13-55078
Petitioner - Appellant, D.C. No. 5:12-cv-00013-PSG
v.
MEMORANDUM*
W. L. MONTGOMERY, Acting Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
California state prisoner Joseph Oliver Demagnus appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We
have jurisdiction under 28 U.S.C. § 2253. We review a district court’s denial of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
habeas corpus petition de novo, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.
2011), and we affirm.
Demagnus contends that his trial counsel was constitutionally deficient for
failing to investigate Demagnus’s alibi and present the testimony of alibi witnesses
at trial. The state court’s rejection of this claim was not contrary to, or an
unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984). See
28 U.S.C. § 2254(d)(1). In light of the overwhelming evidence that Demagnus was
present at the scene of the crime, he cannot establish that there is no “reasonable
argument that counsel satisfied Strickland’s deferential standard.” See Harrington
v. Richter, 131 S. Ct. 770, 788 (2011).
We construe Demagnus’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
2 13-55078