Philip Rogers v. Debbie Asuncion

FILED NOT FOR PUBLICATION SEP 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP ROGERS, No. 18-55102 Petitioner-Appellant, D.C. No. 2:16-cv-00901-JC v. MEMORANDUM* DEBBIE ASUNCION, Warden, Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Jacqueline Chooljian, Magistrate Judge, Presiding Argued and Submitted September 11, 2019 Pasadena, California Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

Philip Rogers appeals the district court’s decision to deny his petition for a writ of habeas corpus.1 We have jurisdiction under 28 U.S.C. § 2253.

Rogers failed to establish that his trial counsel rendered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984).

Even if Rogers’s trial counsel had introduced evidence that Mary Webster had .28 micrograms per milliliter of cocaine in her system at the time of the accident, there is not a reasonable probability that the result of the proceeding would have been different, given the jury was presented with evidence that Rogers had a high level of intoxication at the time of the incident, was driving with a revoked license over the speed limit, and had prior convictions for both driving under the influence of alcohol and driving while having 0.08% alcohol or more in his blood. Further supporting this conclusion, Rogers failed to introduce evidence that the cocaine in Ms. Webster’s system had any intoxicating effect, and the video footage of the incident presented to the jury did not show that Ms. Webster’s movements at the time of the incident indicated intoxication. Because we conclude on de novo review that Rogers failed to show that any deficient performance of trial counsel prejudiced the defense, we need not reach the question whether we afford AEDPA deference to the state court’s decision. See Berghuis v. Thompkins, 560 U.S. 370, 389 (2010).

AFFIRMED.