Charles Frank Lowery v. Darren Swenson

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
AH/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRANK LOWERY,
Petitioner - Appellant,
v.
DARREN SWENSON,
Respondent - Appellee.
No. 06-35810
D.C. No. CV-06-05112-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Washington state prisoner Charles Frank Lowery (“Lowery”) appeals pro se
from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition.
We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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AH/Research 06-35810
Lowery contends that his Sixth Amendment right to effective assistance of
counsel was violated when counsel failed to adequately investigate and warn him
about the unreliability of polygraph examinations, and when the attorney failed to
ensure that the prosecution had sufficient evidence to convict Lowery on all of the
charged counts.
We agree with the district court’s conclusion that Lowery failed to show that
his trial counsel’s performance fell below an objective standard of reasonableness,
or that any deficient performance caused prejudice. Strickland v. Washington, 466
U.S. 668, 687 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (reaffirming that
the Strickland standard “applies to challenges to guilty pleas based on ineffective
assistance of counsel”). The state court’s decision rejecting Lowery’s claim was
not contrary to or an unreasonable application of clearly established federal law.
See 28 U.S.C. § 2254(d)(1).
To the extent that Lowery raises uncertified issues, we construe such
argument as a motion to broaden the certificate of appealability, and we deny the
motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th
Cir. 1999) (per curiam).
AFFIRMED.

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