Argued and Submitted April 17, 2013—San Francisco, California.
Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding D.C. No. 1:08-cv-01152-OWW-JMD
Arthur Henry Weed, Santa Barbara, California, for Petitioner-Appellant.
Lloyd George Carter and Lewis Albert Martinez, Deputy Attorneys General, Fresno, California, for Respondent-Appellee.
Before: John T. Noonan, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition alleging ineffective assistance when counsel allegedly promised in his opening statement that a witness would testify.
The panel held that the state court was not unreasonable in concluding that counsel did not make such a promise, explaining that it was rather an expression of hope that left the jury open to the possibility that the witness would not appear.
NOONAN, Circuit Judge.
Roger Saesee appeals the denial of his petition for a writ of habeas corpus. We find that Saesee's counsel was not constitutionally ineffective because he did not promise the jury that a witness would testify. We affirm.
On November 15, 2004, Joe Fernandez was barbequing with his friend Fernando Cantu when a group of men, including Defendant Saesee, approached them. At least two of the men were members of the ...