Tenore v. Campbell

Filing 32

USCA MEMORANDUM as to 15 Notice of Appeal filed by Michael B. Tenore. The decision of the district court is affirmed. (mcl, COURT STAFF) (Filed on 6/8/2010)

Case: 09-15427

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ID: 7360128

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FILED
N O T FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUN 04 2010
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

MICHAEL TENORE Petitioner - Appellant, v.

N o . 09-15427 D .C . No. 3:06-cv-03992-CRB

M EM O RA ND UM * R O S A N N E CAMPBELL, WARDEN OF M U L E CREEK STATE PRISON Respondent - Appellee.

A p p e al from the United States District Court fo r the Northern District of California C h arles R. Breyer, District Judge, Presiding A rg u ed and Submitted April 12, 2010 San Francisco, California B e fo r e : SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District J u d g e .**

This disposition is not appropriate for publication and is not precedent ex cep t as provided by 9th Cir. R. 36-3. T h e Honorable James Maxwell Moody, Senior United States District Ju d g e for the Eastern District of Arkansas, sitting by designation.
**

*

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M ic h a el Tenore, a California state prisoner, appeals the district court's denial o f his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction by bench trial for forcible rape, aggravated sexual assault on a child and other crimes. We h av e jurisdiction pursuant to 28 U.S.C. §2253. We review de novo the district co u rt's denial of a habeas petition. Gill v. Ayers, 342 F.3d 911, 917 (9 th Cir. 2003).

T e n o r e argues that he did not voluntarily waive his right to a jury trial, that h e was denied his right to confront his accusers, that he had ineffective assistance o f counsel, and that the cumulative impact of the errors denied him due process of la w . He also claims that the district court erred when it denied him an evidentiary h earin g on his habeas claims. T h e California Court of Appeal (on direct appeal) and the California S u p erio r Court (on habeas review) found that Tenore knowingly and voluntarily w aiv ed his right to a jury trial, see Singer v. United States, 380 U.S. 24, 34 (1965), an d he and his counsel waived his right to confront and cross examine the w itn esses against him, see Wilson v. Gray, 345 F.2d 282, 286 (9 th Cir. 1965). The r ec o r d demonstrates that Tenore was fully aware of the scope of his rights to a jury trial and to confront and cross examine witnesses. Tenore waived these rights v o lu n ta rily as a matter of strategy. The state courts' decisions were not "contrary 2

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to , or involve[] an unreasonable application of, clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States" nor were they "based on an u n reaso n ab le determination of the facts in light of the evidence presented in the S ta te court proceeding." 28 U.S.C. § 2254(d). T en o re failed to show that his counsel's actions were outside the range of p ro fessio n ally competent assistance or that his counsel's alleged deficient p erfo rm an ce caused prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1 9 8 4 ). The state court's decision rejecting Tenore's ineffective assistance of c o u n s el claim, therefore, was not "contrary to, or ... an unreasonable application of, c le ar ly established Federal law." 28 U.S.C. § 2254(d)(1). T en o re claims that the cumulative impact of the errors denied him his right to due process of law. The evidence of Tenore's guilt is overwhelming; thus, the alleg ed errors were harmless. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007). B e ca u s e Tenore failed to raise a colorable claim for relief, we reject T en o re's contention that an evidentiary hearing was required with regard to this m atter. See Earp v. Ornoski, 431 F. 3d 1158, 1167 (9 th Cir. 2005). A F F IR M E D .

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