Joseph Lowell McElyea, Jr. v. ATTORNEY GENERAL FOR THE STATE OF ARIZONA and CHARLES L. RYAN

* 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).
*** The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH LOWELL MCELYEA, JR.,
Petitioner - Appellant,
v.
ATTORNEY GENERAL FOR THE
STATE OF ARIZONA and CHARLES L.
RYAN,
Respondents - Appellees.
No. 09-15429
D.C. No. 2:06-cv-00885-SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Submitted October 25, 2011 **
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and QUIST,*** Senior District
Judge.
FILED
NOV 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Arizona state court did not unreasonably apply clearly established
Supreme Court law when it rejected Joseph Lowell McElyea’s claim that he
received ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1); see Strickland
v. Washington, 466 U.S. 668 (1984). Because there is no support in the record that
McElyea’s counsel knew or had reason to know of the arresting officers’ alleged
misconduct, the state court could reasonably determine that McElyea’s counsel did
not perform deficiently by failing to challenge the admissibility of McElyea’s
confession. See Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009) (per curiam).
Further, even if counsel’s performance had been deficient, McElyea suffered no
prejudice, given that he independently testified to the contents of his post-arrest
statements at trial. See Strickland, 466 U.S. at 694.
The district court did not err by declining to conduct an evidentiary hearing
because, even assuming McElyea made reasonable efforts to investigate and
pursue his claims in state court, 28 U.S.C. § 2254(e)(2), he has not alleged specific
facts which, if true, would entitle him to relief. See West v. Ryan, 608 F.3d 477,
485 (9th Cir. 2010), cert. denied, 131 S. Ct. 1473 (2011).
Finally, the district court did not err in declining to hear McElyea’s untimely
objections to the magistrate judge’s report and recommendation because McElyea
neither presented sufficient evidence to overcome Rule 5(b)’s presumption of

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service, Fed. R. Civ. P. 5(b)(2)(C), nor claimed that the district court’s failure to
consider his general, untimely objection constituted a denial of a constitutional
right, Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).
AFFIRMED.

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