Tony Allen, Jr. v. Mark Shepard , 456 F. App'x 710 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TONY ALLEN, JR., No. 10-15643
Plaintiff - Appellant, D.C. No. 2:06-cv-01923-FCD-
DAD
v.
MARK SHEPARD, Warden Folsom State MEMORANDUM *
Prison,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., Senior District Judge, Presiding
Argued and Submitted August 30, 2011
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and TIMLIN, District
Judge.**
Tony Allen Jr. appeals the district court’s denial of his 28 U.S.C. § 2254habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert J. Timlin, Senior United States District Judge for
the Central District of California, sitting by designation.
Allen is not entitled to habeas relief because the California Court of
Appeal’s decision that Allen’s trial counsel, James Sherriff, did not render
ineffective assistance was not “contrary to,” or an “unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” nor was it “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Sherriff’s decision to forgo further investigation into victim David Bell’s
violent history was reasonable under Strickland v. Washington, 466 U.S. 668(1984). Sherriff’s strategic decision not to pursue Bell’s violent history was
reasonable given Sherriff’s knowledge that were he to introduce evidence of Bell’s
violent history the prosecution could introduce evidence of Allen’s own criminal
background, which was significant even without the alleged juvenile conviction.
In any event, Allen was not prejudiced. Evidence of Bell’s violent history, and
presentation of an imperfect self-defense defense, rather than the alibi defense,
would not have affected the outcome. See id. at 691-92. Allen fails to take into
consideration how a jury would react to the introduction into evidence of his own
criminal background. Therefore the California Court of Appeal’s determinations
were appropriate under AEDPA. See 28 U.S.C. § 2254(d). Accordingly, under
AEDPA’s deferential standard we must affirm the California Court of Appeal’s
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denial of Allen’s 28 U.S.C. § 2254 habeas petition. See Harrington v. Richter, 131
S. Ct. 770, 788 (2011) (explaining that the standards created by Strickland and
AEDPA are both highly deferential, and when the two apply in tandem, review is
doubly so).
AFFIRMED.
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