NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE ALDERMAN, No. 17-35022

Petitioner-Appellant, D.C. No. 2:15-cv-00618-TSZ

v.

MEMORANDUM*

MARGARET GILBERT, Superintendent of Stafford Creek Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted April 10, 2018 Seattle, Washington

Before: TASHIMA and GRABER, Circuit Judges, and MIHM,** District Judge.

Jesse Alderman appeals the denial of his habeas petition under 28 U.S.C.

§ 2254. Petitioner was convicted by jury in the Superior Court of Washington for

Snohomish County of one count of first-degree rape of a child and two counts of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael M. Mihm, United States District Judge for the Central District of Illinois, sitting by designation. first-degree child molestation. The district court granted a certificate of

appealability on Petitioner’s claim that his trial counsel rendered ineffective

assistance of counsel by failing to request a lesser included offense instruction for

attempted rape of a child. We have jurisdiction under 28 U.S.C. § 2253. We

review the district court’s judgment de novo, Hurles v. Ryan, 752 F.3d 768, 777

(9th Cir. 2014), and we affirm.

Under the Antiterrorism and Effective Death Penalty Act, we may not grant

habeas relief unless the state court’s adjudication of the claim was (1) “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). We cannot conclude that the state

court’s adjudication was in error.

To establish ineffective assistance of counsel, a petitioner must show both

that his counsel’s performance was deficient and that the deficient performance

was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). When it is

clear that a petitioner cannot show the requisite prejudice, we need not delve into

the alleged performance deficiencies. Id. at 697; Williams v. Calderon, 52 F.3d

1465, 1470 (9th Cir. 1995).

We first assume, without deciding, that counsel’s performance was deficient

2 17-35022 for failure to request an instruction on attempted child rape (on the ground that

some affirmative evidence would have supported such an instruction). However,

while the Washington Court of Appeals only addressed the first prong of the

Strickland test, Petitioner is unable to demonstrate prejudice. Petitioner was

convicted of one count of first-degree rape of a child and two counts of first-degree

child molestation. The jury acquitted Petitioner on a third count of child

molestation. Inclusion of such an instruction on attempted rape would likely have

no effect on the outcome of the case because it would have been prejudicial to

Petitioner’s best arguments to the jury, and be inconsistent with his denial of the

charges. The Petitioner is unable to show a substantial likelihood the verdict

would have been different.

The judgment of the district court is AFFIRMED.

3 17-35022