Lilly

MEMORANDUM ***

1. Although Lilly fails to employ the standard of review required by 28 U.S.C. § 2254 (d) in his opening brief, this failure does not waive Lilly’s claim that his counsel was ineffective. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (“[W]e may review an issue if the failure to raise the issue properly did not prejudice the defense of the opposing party”). The state anticipated that Lilly would raise his claim under the correct standard of review in his reply brief, so it was not prejudiced by Lilly’s initial failure to do so.

2. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), requires reversal only where counsel’s performance falls below an objective standard of reasonableness and the defendant is prejudiced by the deficient performance. See id. at 687 , 104 S.Ct. 2052 ; see also Kimmelman v. Morrison, 477 U.S. 865 , 375, 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (“Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the…