Tolbert

concurring.

I agree that Petitioner has failed to prove that the challenged actions of his counsel and the trial court caused prejudice as required under clearly established Federal law. However, I write separately to address Petitioner’s claim that his counsel was ineffective in not opposing the joinder of his burglary and escape counts.

In order to prove his counsel was constitutionally ineffective, Petitioner must demonstrate (1) that his counsel’s performance failed to meet an “ ‘objective standard of reasonableness,’ ‘under prevailing professional norms,’ ” Rompilla v. Beard, 545 U.S. 374 , -, 125 S.Ct. 2456, 2462 , 162 L.Ed.2d 360 (2005) (citations omitted); and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

First, we have “acknowledged that there is ‘a high risk of undue prejudice ... whenever joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.’ ” Bean v. Calderon, 163 F.3d 1073, 1084 (9th…

MEMORANDUM **

Petitioner-Appellant Gregory Tolbert (“Tolbert”) was convicted in California state court of two counts of first degree burglary and one count of forcible escape, and was sentenced under California’s three-strikes law to seventy-seven years to life in prison. After exhausting his state-court remedies, Tolbert sought a writ of habeas corpus in federal court, alleging various constitutional errors. The district court denied the writ, and Tolbert now appeals.

We review the district court’s decision de novo, see Williams v. Runnels, 432 F.3d 1102, 1105 (9th Cir.2006), and the state court’s decision under the deferential standard of the the Antiterrorism and Effective Death Penalty Act (“AEDPA”), see Himes v. Thompson, 336 F.3d 848, 852 (9th Cir.2003). Under AEDPA, federal habeas relief is unavailable for a claim adjudicated in state court unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

Tolbert first asserts that his trial attorney provided him with ineffective assistance of counsel by requesting multiple…