FILED

NOT FOR PUBLICATION

MAR 09 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID ERNEST GILDERSLEEVE, No. 17-35077

Petitioner-Appellant, D.C. No. 3:15-cv-01178-MO

v.

MEMORANDUM*

ELLEN ROSENBLUM and OREGON

DEPARTMENT OF CORRECTIONS,

Respondents-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding

Submitted March 6, 2018** Portland, Oregon

Before: FISHER, N.R. SMITH, and HURWITZ, Circuit Judges.

David Gildersleeve appeals the district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition. Gildersleeve claims his trial counsel was ineffective

in failing to impeach one of the State’s witnesses. The state court determined that

* 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). trial counsel’s performance was deficient, but that Gildersleeve suffered no

prejudice because the evidence of guilt was overwhelming. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.

“[W]e review de novo the district court’s decision to grant or deny a petition

for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004). “Because [Gildersleeve] filed his federal habeas petition after April 24,

1996, his petition is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987,

993 (9th Cir. 2010). Under the AEDPA, we “must deny habeas relief with respect

to any claim adjudicated on the merits in a state court proceeding unless the

proceeding ‘resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Id. at 993–94 (quoting 28 U.S.C. §

2254(d)(1)). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

established the familiar “two-prong standard for evaluating ineffective assistance

of counsel claims.” Cheney, 614 F.3d at 994. First, the defendant must prove that

counsel’s performance was “deficient,” i.e., “that it ‘fell below an objective

standard of reasonableness,’ as measured by ‘prevailing professional norms.’” Id.

(quoting Strickland, 466 U.S. at 688). Second, the defendant must prove “that

2 counsel’s deficiencies were prejudicial to the defense.” Id. at 995. “To establish

prejudice, the defendant ‘must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. (quoting Strickland, 466 U.S. at 694).1

Gildersleeve asserts that trial counsel should have impeached one of the

government’s trial witnesses with a prior inconsistent statement. Even if

Gildersleeve’s trial counsel had done so, the evidence of guilt was overwhelming.

Three other eyewitnesses testified to essentially the same facts as the un-impeached

witness. In addition, the un-impeached witness’s prior statement could not be

introduced under state evidence rules as substantive evidence, because it was not

“given under oath subject to the penalty of perjury at a trial, hearing or other

proceeding, or in a deposition.” Or. Rev. Stat. § 40.450; see also State v. Staley,

995 P.2d 1217, 1223-24 (Or. Ct. App. 2000); Davis v. County of Clackamas, 134

P.3d 1090, 1095 (Or. Ct. App. 2006). At best, impeaching the witness could only

have made the government’s case negligibly weaker, giving the government three

consistent eyewitnesses rather than four. Thus, the state court reasonably applied

Strickland when it held that Gildersleeve did not establish prejudice.

1 Because the state court found trial counsel’s performance deficient, only the prejudice prong of Strickland is at issue here. 3

AFFIRMED.

4