Roe

MEMORANDUM *

Jerry T. Smith appeals the denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 and § 1291, and we affirm.

Smith argues that his trial counsel’s failure to request DNA testing on semen evidence from the gang rape for which he was convicted amounted to ineffective assistance of counsel. Preliminarily, we reject the government’s contention that Smith procedurally defaulted this argument by failing to raise it at the state court proceedings. Both of Smith’s state habeas petitions alleged that trial counsel was in *852 effective because he failed to “recognize the obvious exculpatory potential of semen evidence.”

Smith’s ineffective assistance claim fails if it does not satisfy either the deficient or prejudice prongs required by Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Smith has failed, at least, to show prejudice — that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 . Even if test results revealed the semen did not match Smith’s, such a finding would not have prevented a conviction under Cal.Penal Code § 264.1, because…