Carlos ESQUIVEL, Petitioner-Appellant, v. Al RAMIREZ, Respondent-Appellee, 605 F. App'x 661

MEMORANDUM Petitioner Carlos Esquivel, a state prisoner, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. He contends that the district court erred when it concluded that Esquiv-el could not show prejudice stemming from his counsel’s failure to tell Esquivel that he had a right not to participate in a psycho-sexual evaluation (“PSE”) prior to sentencing. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm. Esquivel’s petition is governed by the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254.

To be eligible for habeas relief, Esquivel must show that the Idaho courts’ adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d). Esquivel argues that the Idaho Court of Appeals unreasonably applied Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine that he had not suffered prejudice from his counsel’s deficient performance. But, as we recently reaffirmed, we have never held that there is clearly established law applying the Strickland standard to “sentencing in noncapital cases.” Daire v. Lattimore, 780 F.3d 1215, 1221 (9th Cir.2015). Absent such “clearly established law,” a federal court operating under AEDPA cannot grant relief. Id.

Moreover, even if we assume that clearly established Supreme Court law applied Strickland’s requirements to attorney errors at sentencing in non-capital cases, we nonetheless would reject application of Strickland because of a lack of the required element of prejudice for reasons that follow. Esquivel also argues that the Idaho court’s decision on prejudice was an unreasonable determination of the facts.

It is true that the Idaho Court of Appeals did not examine the PSE, which was missing from the appellate record, in issuing its decision; instead, it applied a presumption, under settled Idaho law, that missing parts of the appellate record support the decision of the district court (here, that there had been no prejudice).

The Court of Appeals noted this issue, stating that Es-quivel bore the burden of proof, and that his “[fjailure to include the PSE in the appellate record precludes the complete analysis of the prejudice prong.” The district court reasoned that “[tjhis omission ... does not make the Court of Appeals’s fact finding unreasonable,” because the Idaho Court of Appeals made its decisions “reasonably based on those facts that were presented ” to the state court, as required by § 2254(d)(2). We agree, and reject Es-quivel’s contention.

Even if we accept Esquivel’s argument, assume that the Idaho Court of Appeals made an unreasonable determination of the facts, and perform a de novo review of his claim, we would still affirm. While the record does indicate that the sentencing judge considered the PSE, there is no evidence that such consideration led her to increase Esquivel’s sentence.

The conclusions of the PSE bolster the other evidence considered by the sentencing judge, particularly Esquivel’s denial of culpability at trial, upon which the sentencing judge relied “very heavily.” Esquivel contended that the child victim was being “coached” to make her accusations, an argument that the sentencing judge specifically rejected, explaining that the child victim had given “quite credible” testimony to state investigators. The denial of responsibility by Esquivel was a central factor in sentencing.

Even on de novo review, we would conclude that the conclusions of the PSE, whether or not considered by the sentencing judge, added nothing beyond further support for other evidence in the trial record. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3.