David Ernest Gildersleeve v. ELLEN ROSENBLUM and OREGON DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ERNEST GILDERSLEEVE,
Petitioner-Appellant,
v.
ELLEN ROSENBLUM and OREGON
DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
No. 17-35077
D.C. No. 3:15-cv-01178-MO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Submitted March 6, 2018**
Portland, Oregon
Before: FISHER, N.R. SMITH, and HURWITZ, Circuit Judges.
David Gildersleeve appeals the district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition. Gildersleeve claims his trial counsel was ineffective
in failing to impeach one of the State’s witnesses. The state court determined that
FILED
MAR 09 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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trial counsel’s performance was deficient, but that Gildersleeve suffered no
prejudice because the evidence of guilt was overwhelming. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
“[W]e review de novo the district court’s decision to grant or deny a petition
for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). “Because [Gildersleeve] filed his federal habeas petition after April 24,
1996, his petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987,
993 (9th Cir. 2010). Under the AEDPA, we “must deny habeas relief with respect
to any claim adjudicated on the merits in a state court proceeding unless the
proceeding ‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.’” Id. at 993–94 (quoting 28 U.S.C. §
2254(d)(1)). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established the familiar “two-prong standard for evaluating ineffective assistance
of counsel claims.” Cheney, 614 F.3d at 994. First, the defendant must prove that
counsel’s performance was “deficient,” i.e., “that it ‘fell below an objective
standard of reasonableness,’ as measured by ‘prevailing professional norms.’” Id.
(quoting Strickland, 466 U.S. at 688). Second, the defendant must prove “that
2

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counsel’s deficiencies were prejudicial to the defense.” Id. at 995. “To establish
prejudice, the defendant ‘must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694).1
Gildersleeve asserts that trial counsel should have impeached one of the
government’s trial witnesses with a prior inconsistent statement. Even if
Gildersleeve’s trial counsel had done so, the evidence of guilt was overwhelming.
Three other eyewitnesses testified to essentially the same facts as the un-impeached
witness. In addition, the un-impeached witness’s prior statement could not be
introduced under state evidence rules as substantive evidence, because it was not
“given under oath subject to the penalty of perjury at a trial, hearing or other
proceeding, or in a deposition.” Or. Rev. Stat. § 40.450; see also State v. Staley,
995 P.2d 1217, 1223-24 (Or. Ct. App. 2000); Davis v. County of Clackamas, 134
P.3d 1090, 1095 (Or. Ct. App. 2006). At best, impeaching the witness could only
have made the government’s case negligibly weaker, giving the government three
consistent eyewitnesses rather than four. Thus, the state court reasonably applied
Strickland when it held that Gildersleeve did not establish prejudice.
1 Because the state court found trial counsel’s performance deficient, only
the prejudice prong of Strickland is at issue here.
3

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AFFIRMED.
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