Jose Baldemar Perez v. FERNANDO GONZALEZ, Warden

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).
We grant Respondent’s request to substitute the warden of Perez’s***
current prison, rather than the State of California, as the properly-named
respondent.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE BALDEMAR PEREZ,
Petitioner - Appellant,
v.
FERNANDO GONZALEZ, Warden,***
Respondent - Appellee.
No. 09-16290
D.C. No. 1:07-cv-01662-WQH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William Q. Hayes, District Judge, Presiding
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
FILED
JAN 05 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-16290 2
Jose Baldemar Perez appeals pro se from the district court’s judgment
denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28
U.S.C. § 2253, and we affirm.
Perez contends that he was arbitrarily denied a state law entitlement and
therefore his due process rights were violated because there was insufficient
evidence to corroborate his accomplice’s testimony regarding the occurrence of an
attempted robbery. The record indicates that there was corroborating evidence
sufficient to connect Perez to the commission of the attempted robbery in such a
way as to reasonably satisfy the jury that the accomplice was telling the truth.
Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000).
Perez also argues that his counsel rendered ineffective assistance by failing
to object to: the unsworn testimony of a witness; the admission of that witness’
prior inconsistent statements; the competency of that witness; and the trial court’s
determination of the witness’ competency without a separate hearing. Perez has
not demonstrated a reasonable probability that the judgment would have been
different, had counsel objected. Therefore, Perez cannot establish he was
prejudiced by counsel’s performance. See Strickland v. Washington, 466 U.S. 668,
694 (1984).

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09-16290 3
In sum, the state court’s rejection of Perez’s claims was neither contrary to,
nor an unreasonable application of, clearly established federal law, nor an
unreasonable determination of the facts based on the evidence presented. See 28
U.S.C. § 2254(d).
AFFIRMED.

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