841 F. 2d 1130 - Valenzuela v. Goldsmith

MEMORANDUM**

Petitioner Valenzuela, a state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Valenzuela asserts that a number of the district court's findings of fact are erroneous, and that the court erred by concluding the petitioner was not prejudiced by the ineffective assistance of his trial counsel. We affirm.

Valenzuela was convicted in the Maricopa County Superior Court of Arizona of raping and sodomizing Veronica Esparza. At trial, Valenzuela's defense counsel, Lionel Estrada, attempted to show that the victim had consented, and to demonstrate that the victim was so intoxicated that she could not accurately remember the events in question. The prosecution relied on testimony of the victim and the police, and on scientific and medical evidence. Dr. David Wilbert, who conducted the initial physical examination of Esparza, testified regarding his medical report. Allan Raphael, a criminologist for the City of Phoenix who examined the physical evidence, also testified.

Following Valenzuela's conviction, the trial judge granted Valenzuela's motion to vacate judgment after finding that his counsel's representation had been ineffective. The Arizona Court of Appeals affirmed Valenzuela's conviction and reversed the trial court's ruling on the ground that Valenzuela had failed to demonstrate that he was prejudiced by the ineffective representation of his counsel.

After exhausting his state court remedies, Valenzuela filed a petition for habeas corpus in the District Court of Arizona. The district court denied the petition and dismissed it with prejudice. We reversed in part and remanded to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel.

The federal magistrate who conducted the hearing issued a Report and Recommendations denying relief because petitioner was not prejudiced by the alleged errors of counsel and was, therefore, not entitled to habeas relief. The district court adopted the magistrate's Report and Recommendations and dismissed the petition. Valenzuela timely filed a notice of appeal, and the district court granted a certificate of probable cause.

In each instance of the several alleged errors on this appeal, there is adequate support in the record for the district court's conclusion. Petitioner essentially complains about disputed factual issues that were resolved against him. See Hayes v. Kincheloe, 784 F.2d 1434 (9th Cir.1986) (this court reviews for clear error factual findings made by district court in deciding petition), cert. denied, 108 S.Ct. 198 (1987).

To establish his claim for ineffective assistance of counsel, Valenzuela must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Valenzuela did not show the requisite prejudice, thus his claim for ineffective assistance of counsel fails. See id. at 697.

Valenzuela claims that the magistrate erred by refusing to order a secretion test of Valenzuela's semen. This claim is meritless because Valenzuela admitted having intercourse with Esparza.

AFFIRMED.