Lopez-Chavez v. Lampert

MEMORANDUM ** Pablo Lopez-Chavez appeals from the denial of his petition for habeas relief under 28 U.S.C. § 2254 . Lopez-Chavez contends that he was denied his Sixth Amendment right to effective assistance of counsel as a result of his attorney’s failure to pursue an intoxication defense and advise him about such a defense. Lopez-Chavez has not demonstrated that he was prejudiced by this failure, in light of the overwhelming evidence that Lopez-Chavez was not in fact intoxicated on the night of the murder. He is therefore not entitled to habeas relief. See Strickland v. Washington, 466 U.S. 668, 691-92 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). We construe the briefing of uncertified issues as a motion to expand the certificate of appealability, see Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245 (9th Cir.2005), and we deny the motion. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.