Capanear v. Stewart

MEMORANDUM ** Nicholas Capanear appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition. Capanear challenges his Arizona conviction and 25-years to life sentence for unlawful imprisonment, aggravated assault, first-degree burglary, and first-degree murder. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir.2001), cert. denied, 535 U.S. 995, 122 S.Ct. 1556, 152 L.Ed.2d 479 (2002), we affirm. Capanear contends that his trial counsel was ineffective by inadequately moving to suppress statements that he made to the police. We are not persuaded. Because trial counsel successfully suppressed some of the statements, and nothing in the record indicates deficient performance, Capanear cannot establish that his counsel provided ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Capanear also contends that his appellate counsel was ineffective by failing to successfully argue that admission of his statements was error, and that the error was not harmless. Here too, we are not persuaded. Although counsel’s argument was unsuccessful, nothing in the record indicates that counsel rendered ineffective assistance. Cf. Bailey, 263 F.3d at 1027, 1031-34 (concluding that appellate counsel was not ineffective because petitioner failed to show that he would have prevailed on appeal). The district court, therefore, properly denied Capanear’s § 2254 petition because the state court’s decision was not contrary to, or an unreasonable application of, clearly established federal law. See Garvin v. Farmon, 258 F.3d 951, 958 (9th Cir.2001), cert. denied, 535 U.S. 1546, 122 S.Ct. 1546, 152 L.Ed.2d 471 (2002). AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.