Dion Winston v. DWIGHT NEVEN, Warden; ATTORNEY GENERAL OF THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DION WINSTON,
Petitioner - Appellant,
v.
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
No. 12-15483
D.C. No. 2:09-cv-00393-JCM-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 5, 2013 **
Pasadena, California
Before: GOODWIN, FISHER, and CLIFTON, Circuit Judges.
Appellant Dion Winston appeals the district court’s denial of his 28 U.S.C. §
2254 habeas petition. Winston alleges that his trial counsel’s failure to interview
FILED
NOV 21 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Robert LaBelle before trial was ineffective assistance of counsel. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo a district court’s denial of habeas corpus relief. Miles v.
Ryan, 713 F.3d 477, 485 (9th Cir. 2013). The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) permits federal habeas relief only if Winston
demonstrates that the state court’s denial of his claim (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Review of ineffective assistance claims
under AEDPA is “doubly deferential,” and relief may be granted only if the state
court “unreasonably applied the more general standard for
ineffective-assistance-of-counsel claims established by” Strickland v. Washington,
466 U.S. 668 (1984). Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013)
(quoting Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009)) (internal quotation
marks omitted). Under Strickland, Winston must demonstrate both that counsel’s
performance was constitutionally deficient and that such deficiency prejudiced the
defense. See 466 U.S. at 687.
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It was not unreasonable for the state court to conclude that Winston was not
prejudiced by counsel’s failure to interview LaBelle before trial. The jury heard
LaBelle’s testimony and, after weighing it against the conflicting testimony and
physical evidence presented at trial, rejected his account of the shooting. See
Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (“[I]neffective
assistance claims based on a duty to investigate must be considered in light of the
strength of the government’s case.”); see also Wilson v. Henry, 185 F.3d 986,
988-90 (9th Cir. 1999).
Winston’s argument that counsel could have obtained exculpatory physical
evidence as a result of a pre-trial interview with LaBelle is similarly unpersuasive.
Both nine millimeter and .45 caliber shell casings were found near where witnesses
testified they saw Winston with a gun on the night of the shooting. Police
recovered unused .45 caliber ammunition at Winston’s mother’s house, but no
evidence connected Winston to the nine millimeter casings. Because the state’s
theory of the case was that Winston was liable either as the shooter or for aiding
and abetting the shooter, evidence of the caliber of bullet that hit LaBelle would
not have had a reasonable probability of affecting the outcome at trial. See
Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (holding that in assessing
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prejudice under Strickland, “[t]he likelihood of a different result must be
substantial, not just conceivable”).
Winston’s argument that the state court based its decision on an
unreasonable determination of facts is without merit. See Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004) (“[A] federal court may not second-guess a state
court’s fact-finding process unless, after review of the state-court record, it
determines that the state court was not merely wrong, but actually unreasonable.”).
Accordingly, the state court’s decision qualifies for deference under 28
U.S.C. § 2254(d). We therefore deny Winston’s motion to expand the record on
appeal. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under §
2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.”); 28 U.S.C. § 2254(d)(2) (limiting review to “evidence
presented in the State court proceeding”); see also Johnson v. Finn, 665 F.3d 1063,
1069 n.1 (9th Cir. 2011).
The district court’s denial of Winston’s habeas petition is AFFIRMED and
his motion to expand the record on appeal is DENIED.
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