David Louis Costella v. KENNETH CLARK, Warden; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Frederic Block, Senior U.S. District Judge for the
Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LOUIS COSTELLA,
Petitioner - Appellant,
v.
KENNETH CLARK, Warden;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Respondents - Appellees.
No. 11-15896
D.C. No. 4:08-cv-01010-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: TROTT and RAWLINSON, Circuit Judges, and BLOCK, Senior District
Judge.**
FILED
MAR 11 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 We reject Appellees’ contention that Costella’s federal habeas petition
was untimely.
2
Petitioner David Louis Costella (Costella), who was convicted by a jury of
child sexual abuse, challenges the district court’s denial of his federal habeas
petition premised on ineffective assistance of counsel. 1
The California state court’s determination that Costella’s trial counsel did
not render ineffective assistance of counsel by failing to contact Costella’s ex-
girlfriends or otherwise investigate the victim’s credibility was not unreasonable.
Costella failed to demonstrate that clearly established precedent from the United
States Supreme Court required Costella’s trial counsel, in a non-capital case, to
contact witnesses against Costella’s wishes. See Strickland v. Washington, 466
U.S. 668, 691 (1984) (“[W]hen a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as unreasonable. .
. .”). The state court also reasonably held that Costella’s trial counsel made
strategic decisions to not attack the victim’s credibility or seek additional expert
testimony. See Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (“In
determining deficiency, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,

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2 The district court properly denied Costella’s discovery request as
speculative, and his motion to expand the record as an impermissible challenge to
the state court’s evidentiary ruling. See Calderon v. U.S. Dist. Ct. for the N. Dist.
of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996) (“[C]ourts should not allow prisoners
to use federal discovery for fishing expeditions to investigate mere speculation. . .
.”) (citation omitted); see also Rhoades v. Henry, 638 F.3d 1027, 1034 n.5 (9th Cir.
2011), as amended (“[E]videntiary rulings based on state law cannot form an
independent basis for habeas relief.”) (citation omitted).
3
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. . . .”) (citation and
internal quotation marks omitted).
In any event, the state court did not unreasonably apply Strickland in ruling
that Costella was not prejudiced by his attorney’s conduct. See Brodit v. Cambra,
350 F.3d 985, 994 (9th Cir. 2003) (“Reasonable minds can differ with the state
court’s conclusion. This case mainly rested, after all, on a swearing contest
between the child and Petitioner. . . . But the very fact that the question is close
dictates the outcome under our deferential standard of review. The [state court] did
not apply Strickland unreasonably. . . .”) (footnote reference omitted). 2
Costella’s request for a certificate of appealablity on his Ex Post Facto claim
is denied because he has failed to make “a substantial showing of the denial of a
constitutional right. . . .” Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012), as

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4
amended; see also Renderos v. Ryan, 469 F.3d 788, 794-95 (9th Cir. 2006)
(holding that Cal. Penal Code § 803 does not violate the Ex Post Facto Clause).
AFFIRMED.

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