Carey

MEMORANDUM ***

Appellant Carl Ray Smith is currently serving a life sentence for a robbery conviction constituting his third “strike” under California sentencing law. In his habeas petition, he challenges that conviction, claiming that he was denied the effective assistance of counsel at both the guilt and penalty phases. The Magistrate Judge, in a report adopted by the District Court, found that there was no ineffective assistance of counsel because of the lack of prejudice resulting from any of the claimed instances of his attorney’s deficient conduct. Smith alternatively argued that counsel engaged in a pattern and practice of misconduct sufficient to establish a presumption of prejudice. The district court found that even assuming the truth of Smith’s allegations, the lack of resulting prejudice would prevent the granting of any relief. Under the applicable Supreme Court standards, no presumption arises unless the failure of counsel is complete. See Bell v. Cone, 535 U.S. *615 685, 697 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002); United States v. Cronic, 466 U.S. 648, 658-59 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). Accordingly, the district court denied both claims, and saw no…