NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

SEP 17 2021

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SHANE ADAIR VICARS, No. 20-17086

Petitioner-Appellant, D.C. No. 2:18-cv-03016-KJM-GGH v.

RALPH M. DIAZ, Acting Secretary for MEMORANDUM* the California Department of Corrections and Rehabilitation, Secretary, California Department of Corrections and Rehabilitation,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted September 13, 2021** San Francisco, California

Before: WALLACE, SCHROEDER, and FORREST, Circuit Judges.

* 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). Shane Vicars, a California state prisoner, appeals from the district court’s

denial of his 28 U.S.C. section 2254 habeas corpus petition challenging his

conviction on 13 counts of child molestation. He received a sentence of 26 years.

The district court issued a certificate of appealability on one claim of ineffective

assistance of counsel.

Vicars’ first trial ended in a hung jury, after Vicars raised a peer

contamination theory to defend against the charge he had molested five victims.

His counsel attempted to undermine the testimony of two of those victims by

arguing that one of the victims had reason to initiate a rumor campaign against

Vicars and that the charges were the product of peer contamination.

Vicars now argues that his new counsel in the second trial should have

investigated and raised the same defense. In the second trial, however, Vicars was

charged with molesting only two victims, neither of whom had reason to begin a

rumor campaign. Raising this defense in the second trial would have necessitated

calling an additional victim as a witness, thereby introducing potentially harmful

evidence of additional child molestation. The state court, therefore, held counsel

was not ineffective because counsel prepared extensively before making a

reasonable tactical decision. Counsel was not ineffective under the applicable

standards of Strickland v. Washington, 466 U.S. 668, 687 (1984).

2 The district court correctly ruled that the state court’s conclusion was not an

unreasonable application of federal law or an unreasonable determination of fact as

required for granting habeas relief under federal law. See 28 U.S.C. § 2254(d).

AFFIRMED.

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