NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD W . RANGEL,

Petitioner-Appellant,

v. DW IGHT NEVEN, W a rden; ATTORNEY GENERAL OF THE STATE OF NEVADA,

Respondents-Appellees. No. 16-15232 D.C. No. 2:12-cv-02032-JAD-PAL
MEMORANDUM *

Appeal f rom the United States District Court f or the District of

Nevada Jennif er A. Dorsey , District Judge, Presiding Argued and Subm itted June 15, 2017 San Francisco, Calif

o rnia Bef ore: SCHROEDER, FISHER, * * and N.R. SMITH, Circuit Judges. 

# F IL ED
J UN 28 2017 M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

* 

### This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3. ** 

### The Honora

ble D. M ic h a e l Fishe r, Unite d Sta t e s C irc uit Judge for the U.S. C ourt of Appe a l s for the Third C irc uit, sitting by de signa t ion.Petitioner Ronald Rangel, a Nevada state prisoner, was convicted of f elony burglary . He now appeals denial of his petition f or habeas corpus under 28 U.S.C. § 2254, arguing that his trial counsel was constitutionally inef f ective. To succeed on his claim

of inef f ective assistance of

counsel, Rangel m

ust prove that “ counsel m ade errors so serious that counsel was not f unctioning as the ‘counsel’ guaranteed the def

endant by the Sixth Am endm ent” and that “the def icient perf

orm ance prejudiced the def

ense.” Strickland v. W

ashington , 466 U.S. 668, 687 (1984). Under the Antiterrorism

and Ef f ective Death Penalty

Act of 1996, we apply

a “doubly

def erential” standard to inef

f ective assistance claim s brought by state prisoners. Burt v. Titlow , 134 S. Ct. 10, 13 (2013). Here, the state post-conviction court held an evidentiary hearing in which counsel provided reasons f or his trial strategy . W e will not “second guess counsel’s decisions” or trial strategy , Matylinsky v. Budge , 577 F.3d 1083, 1091 (9th Cir. 2009), which he has articulated were “inf orm ed . . ., strategic choices . . . based on prof essional judgm ent.” Strickland , 466 U.S. at 681. In the last reasoned state court decision in Rangel’s case, the Nevada Suprem e Court properly

identif ied Strickland , 466 U.S. 668, as the governing Suprem e Court precedent. The district court concluded that the Nevada Suprem e Court’s denial of Rangel’s claim s was not contrary to f ederal law, an unreasonable application of f ederal

2law, or an unreasonable determ ination of f acts based on the evidence presented. W e af f irm
. Rangel f

irst argues that his counsel was inef f ective in preparing and presenting the def ense’s theory

that Rangel was voluntarily intoxicated at the tim e of the thef t and theref ore lacked the specif

ic intent necessary

f or burglary

under Nev. Rev. Stat. § 205.060. But the problem was not counsel’s perf o rm a nce; it was the lack of exculpatory evidence. Counsel reasonably concluded that Rangel should not testif y because doing so would have allowed the prosecution to introduce evidence of Rangel’s num e rous previous f elonies, and there was no other direct evidence of v oluntary intoxication. Even so, counsel used what little was available to raise an inf erence of voluntary

intoxication. Counsel’s closing argum ent regarding specif ic intent adequately

put the jury

on notice that it could not convict if it f o und that Rangel was voluntarily i ntoxicated. Although the strategy d i d not succeed, Rangel has f ailed to show that counsel was constitutionally inef f ective. See Strickland , 466 U.S. at 689. There was no evidence to support an instruction as to voluntary intoxication, so counsel’s perf orm a nce was not def

icient in not asking f or one. Rangel next argues that counsel was inef f e ctive f or f ailing to object to introduction of an unauthenticated recording. The Nevada Suprem e Court did not run af oul of Strickland

by concluding that counsel’s decision not to object was reasonable. Rangel
3f

ailed to provide his counsel with any reason to suspect that the recording was not authentic and has not shown that an objection would have helped the def ense. Even a successf ul objection on the ground of f ailure to authenticate would have allowed the detective, as a prosecution witness, to identif y the voice as Rangel’s and explain that he recognized Rangel’s voice because he had extradited Rangel af ter Rangel f

led to W a shington prior to the trial. Repeated ref erences to the recording would only have
em phasized its probative value. Rangel next argues that counsel was inef f e ctive f or conceding guilt. But counsel, in arguing Rangel was not guilty of burglary , said no m ore than that Rangel m ay have been guilty

of lesser, uncharged crim es. The Nevada Suprem e Court reasonably concluded that counsel consulted Rangel concerning the strategy . Moreover, the trial court specif

ically asked Rangel during trial if he consented to this strategy , which he did. Even if counsel did not adequately consult Rangel, the strategy was reasonable in light of the strength of

the prosecution’s case. See United States v. Thomas , 417 F.3d 1053, 1058 (9th Cir. 2005). Lastly , the Nevada Suprem e Court reasonably concluded that Rangel had f ailed to show that counsel harbored a conf lict of interest that rendered him inef f ective. Rangel has not shown that counsel had divided loy alty , but only that there was som e

4disagreem ent between him self and counsel that the trial court resolved. See Cuyler v. Sullivan , 446 U.S. 335, 350 (1980). The district court properly denied Rangel’s habeas petition under 28 U.S.C. § 2254. AFFIRMED
.

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