Jerry Fuentes v. Mario Spearman

MEMORANDUM

A California jury found Jerry Fuentes guilty of first-degree murder. His conviction became final in May 2005. In 2011, he filed a habeas petition in federal district court arguing that trial counsel was ineffective for not proffering the evidence contained in a pre-trial neuropsychological report. The district eourt denied the petition. Fuentes appeals the denial. We review the district court’s denial de novo. Alt v. Hickman, 584 F.3d 1174, 1181 (9th Cir.2009).

Fuentes did not file a habeas petition within one year after his conviction became final in May 2005. We assume without deciding, as did the district court, that Fuentes can overcome AEDPA’s one-year statute of limitations under 28 U.S.C. § 2244 (d)(1) by proving that he is entitled to equitable tolling. Similarly, we assume without deciding that Fuentes’ ineffective assistance of counsel claim is not procedurally defaulted. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.2002).

After assuming these issues in Fuentes’ favor and reviewing his claim de novo, we agree with the district court that he has not proven that he was prejudiced by ineffective assistance of counsel. Strickland v. Washington, 466…