Ben-Sholom

This appeal stems from the murder of Silva Teague during a burglary and robbery gone wrong in rural California. In 1986, Chay’im Ben-Sholom was convicted of the murder and sentenced to death. In 2008, the district court granted habeas relief as to Ben-Sholom’s claim of ineffective assistance of counsel during the penalty phase of trial, vacated the capital sentence, and ordered a re-trial as to the sentence or the imposition of a life sentence without the possibility of parole. Ben-Sholom v. Ayers, 566 F.Supp.2d 1058, 1147 (E.D.Cal.2008). The government does not appeal this decision. Ben-Sholom, however, appeals the denial of his request for an evidentiary hearing on his claim of ineffective assistance of counsel during the guilt phase of his bifurcated trial. Because the government does not argue that Ben-Sholom’s trial counsel was effective, the question shifts to prejudice. We conclude that the district court did not err in declining to order an evidentiary hearing because Ben-Sholom cannot establish prejudice from counsel’s ineffective performance. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). We affirm.

Factual and…