Xue-Bao Chen v. DWIGHT NEVEN, Warden; NEVADA ATTORNEY GENERAL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUE-BAO CHEN,
Petitioner-Appellant,
v.
DWIGHT NEVEN, Warden;
NEVADA ATTORNEY GENERAL,
Respondents-Appellees.
No. 15-17151
D.C. No. 2:12-cv-02162-JAD-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted November 16, 2016**
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Xue-Bao Chen appeals the district court’s denial of his petition for habeas
corpus under 28 U.S.C. § 2241. We affirm.
FILED
JAN 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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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The Nevada Supreme Court correctly identified Jackson v. Virginia, 443
U.S. 307 (1979), as the “clearly established Federal law” that governed insufficient
evidence claims. 28 U.S.C. § 2254(d)(1). An “applicant is entitled to habeas corpus
relief if it is found that upon the record evidence adduced at the trial no rational
trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson,
443 U.S. at 324. The court’s application of Jackson was reasonable. The court
considered the record evidence in the light most favorable to the State and held that
there was sufficient evidence to support Chen’s convictions beyond a reasonable
doubt. Regarding the key issue of whether a knife caused the victims’ injuries, the
court properly resolved conflicts of evidence in favor of the prosecution, and its
conclusion that there was sufficient evidence to support that result was not
unreasonable. See id. at 326.
Similarly, the Nevada Supreme Court properly identified Strickland v.
Washington, 466 U.S. 668 (1984), as the clearly established federal law that
governed ineffective assistance of counsel claims. Chen’s claims for ineffective
assistance of counsel under AEDPA are subject to “doubly deferential” review.
Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (internal quotation marks omitted).
The court’s application of Strickland was not unreasonable. Chen did not
“overcome the presumption that, under the circumstances, the challenged action
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‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Trial counsel’s mention of the
presence of a knife in her opening statement was a reasonable tactical decision to
acknowledge the anticipated testimony that Chen had a knife. It was consistent
with the trial strategy to argue that the victims’ injuries were not caused by a knife.
The record evidence and trial counsel’s closing argument were consistent with the
arguments presented in her opening statement. Nor was the court unreasonable in
determining that the mention of “prior bad acts” was not “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690.
AFFIRMED.
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