Riki Rashaad Muhammad v. CHARLES L. RYAN and ATTORNEY GENERAL OF THE STATE OF ARIZONA

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIKI RASHAAD MUHAMMAD,
Petitioner - Appellant,
v.
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,
Respondents - Appellees.
No. 11-17713
D.C. No. 2:06-cv-01036-SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Submitted February 14, 2013 **
San Francisco, California
Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.
FILED
FEB 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Arizona state prisoner Riki Rashad Muhammad appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for
murder and child abuse. In a previous appeal, the Ninth Circuit remanded the case
to the district court for an evidentiary hearing regarding ineffective assistance of
counsel. Muhammad v. White, 372 F. App'x 732 (9th Cir. 2010). After conducting
the hearing, the district court denied Muhammad’s habeas petition. We affirm.
The parties are familiar with the facts. We review the district court’s denial
of Muhammad’s habeas petition de novo. Hibbler v. Benedetti, 693 F.3d 1140,
1145–46 (9th Cir. 2012). Because our prior decision ordered an evidentiary hearing
and therefore held that the Arizona post-conviction court violated 28 U.S.C. §
2254(d)(2), see Muhammad, 372 F. App'x at 732; see also Earp v. Ornoski, 431
F.3d 1158, 1166-67 (9th Cir. 2005), AEDPA deference does not apply, see
Hibbler, 693 F.3d at 1146. “Factual findings and credibility determinations that
were not made by the trial court but were made by the district court after an
evidentiary hearing are reviewed for clear error.” Crittenden v. Ayers, 624 F.3d
943, 954 (9th Cir. 2010).
Muhammad contends that he was denied effective assistance of counsel
because his trial counsel incorrectly advised him that the state would need to prove
that he intentionally caused his son’s head injury or did so knowing that the

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circumstances were likely to cause death or serious injury. Muhammad asserts that
the advice he received from counsel caused him to reject an advantageous plea
offer. To establish an ineffective assistance of counsel claim, Muhammad must
show both deficient performance and prejudice. Strickland v. Washington, 466
U.S. 668, 687 (1984). Because Muhammad cannot establish prejudice, we need not
decide whether he established deficient performance.
After holding an evidentiary hearing, the magistrate judge found that
counsel’s advice did not cause Muhammad to reject the plea offer. The district
court found that Muhammad’s refusal to plead guilty to second-degree murder or
lesser charges undermined his claim. There is no clear error in this finding. See
Earp, 431 F.3d at 1166. Muhammad’s failure to establish prejudice is fatal to his
ineffective assistance of counsel claim. See Strickland, 466 U.S. at 687.
AFFIRMED.

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