Enrique R. Bautista v. MARK NOOTH, Superintendent, SRCI

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE R. BAUTISTA,
Petitioner - Appellant,
v.
MARK NOOTH, Superintendent, SRCI,
Respondent - Appellee.
No. 11-35542
D.C. No. 3:08-cv-00546-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted May 10, 2013 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, and BERZON and HURWITZ, Circuit Judges.
Petitioner Enrique R. Bautista (“Bautista”) appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for
FILED
MAY 15 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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second degree assault on ineffective assistance of counsel (“IAC”) grounds. We
affirm.
1. The state postconviction court’s (“PCR court”) denial of Bautista’s IAC
claim was not “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Contrary to Bautista’s assertion, the PCR court did not make factual findings
relevant to his IAC claim. Rather, the challenged factual findings addressed a
separate assault charge not related to the incident underlying this appeal.
2. Bautista’s assertion that his trial counsel provided constitutionally
ineffective assistance cannot surmount the “doubly deferential” standard of review
applicable to such claims brought in a § 2254 petition. See Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). The Oregon Court of Appeals summarily
affirmed the PCR court’s denial of Bautista’s IAC claim. Presuming—as we
must—that the Oregon court adjudicated Bautista’s claim on the merits, see
Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013), we conclude that there was a
reasonable basis for denying Bautista’s claim under both prongs of Strickland v.
Washington, 466 U.S. 668 (1984).
Bautista’s trial counsel made a reasonable tactical decision not to cross-
examine Bautista’s co-defendant, Jose Leon-Chavez (“Leon-Chavez”). We “give[]

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great deference” to such “tactical decisions,” Dows v. Wood, 211 F.3d 480, 487
(9th Cir. 2000), particularly where, as here, it was “reasonably foreseeable” that
Leon-Chavez would have provided “damaging testimony if cross-examined at
trial.” Brown v. Uttecht, 530 F.3d 1031, 1037 (9th Cir. 2008). At the time of the
trial, Leon-Chavez had already given the police a statement inculpating Bautista,
and nothing in his post-trial affidavit suggests that he would have contradicted that
statement on cross-examination. See Silva v. Woodford, 279 F.3d 825, 852 (9th
Cir. 2002). In light of the uncertainty surrounding what Leon-Chavez would have
said if questioned, “[t]he state court could reasonably have concluded that counsel
made a legitimate tactical decision.” Richter v. Harrington, 643 F.3d 1238, 1240-
41 (9th Cir. 2011).
Similarly, Bautista cannot show a “reasonable probability” that had his trial
counsel cross-examined Leon-Chavez, “the result of the proceeding would have
been different.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting
Strickland, 466 U.S. at 694). It is unclear what Leon-Chavez would have said
about the assaults had he been asked on cross-examination. And, even if Leon-
Chavez had provided testimony favorable to Bautista, that testimony would have
been contradicted by Leon-Chavez’s earlier statement to police and the testimony
of multiple eyewitnesses identifying Bautista as the assailant. The Oregon Court

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of Appeals’ decision was therefore reasonable under Strickland’s prejudice prong
as well.
AFFIRMED.

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