NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID A. FALCON,                                No.    18-55565

                Petitioner-Appellant,           D.C. No.
                                                2:14-cv-02867-AG-RAO
 v.

NEIL MCDOWELL, Warden,                          MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                      Argued and Submitted August 31, 2020
                              Pasadena, California


Before: SILER,** BERZON, and LEE, Circuit Judges.

      David Falcon appeals from the district court’s denial of his petition for habeas

corpus. We have jurisdiction under 28 U.S.C. § 2253, and we review de novo the

denial of a habeas corpus petition. See Sanders v. Cullen, 

, 793 (9th



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
Cir. 2017). We affirm.

      1.     Falcon’s habeas petition is governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), so he must show that the state

court decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,”

v. Ryan, 

, 777 (9th Cir. 2014). We review the

state court’s last reasoned decision, which in this case is the California Court of

Appeal opinion. Hibbler v. Benedetti, 

, 1146 (9th Cir. 2012),

      2.     The only certified issue on appeal is whether Falcon’s trial counsel

provided ineffective assistance of counsel either (i) when he failed to present

available evidence that Falcon argues impeached the prosecution’s witnesses and

supported Falcon’s defense, or (ii) when he presented an alibi defense despite

Falcon’s earlier admissions of being at the crime scene. Thus, to be entitled to relief,

Falcon had to show that the state appellate court unreasonably applied the standard

from Strickland v. Washington, 

(1984) for ineffective assistance of

counsel claims. To do so, Falcon must demonstrate that trial counsel provided

deficient assistance and that Falcon suffered prejudice as a result. See Harrington

v. Richter, 

, 104 (2011). There is a strong presumption that counsel’s



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representation was reasonable, and prejudice requires a reasonable probability that

the result would have been different but for counsel’s errors. See

    We need not decide whether Falcon’s trial counsel provided deficient

representation because he cannot satisfy the second prong of the Strickland analysis.

He has not shown that there is a reasonable probability that the outcome of the trial

would have been different had his trial counsel not committed the alleged errors

because the evidence against him was overwhelming. When presented with a search

warrant for his home, Falcon directed police to the gun used in the murder, which

was stored in a closet in his home. There is no explanation in the record why the

gun identified as the murder weapon was in Falcon’s closet and how he knew it was

located there. The only testimony on this point, by Falcon’s aunt Anna Maria

Sevilla, was quite implausible and, in any event, placed a gun under a patio, not in a

closet in Falcon’s room. Further, two eyewitnesses identified Falcon as the shooter,

and an officer saw Falcon run home from an area near the crime scene. The

California Court of Appeal therefore reasonably found that there was no reasonable

likelihood that the outcome would have been different in the face of such strong

evidence.

      AFFIRMED.




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