* 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 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT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 APPEALS1 We reject Appellees’ contention that Costella’s federal habeas petition was untimely. 2 Petitioner David Louis Costella (Coste lla), 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 determinati on that Costella’s trial counsel did not render ineffective assistance of couns el by failing to contact Costella’s exgirlfriends or otherwise investigate the victim’s credibility was not unreasonable. Costella failed to demonstrate that cl early 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 woul d 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 vic tim’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 r easonable professional assistance; that is,2 The district court properly deni ed Costella’s discovery request as speculative, and his motion to expand the r ecord 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 exped itions 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 s ound 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 th e very fact that the question is close dictates the outcome under our deferential st andard 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), as4 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.