Carrie McCoin v. Marvin Fickle , 384 F. App'x 629 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARRIE J. HALE MCCOIN, No. 09-35560
Petitioner - Appellant, D.C. No. 1:07-cv-01171-CL
v.
MEMORANDUM *
MARVIN FICKLE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted June 8, 2010
Portland, Oregon
Before: FERNANDEZ, McKEOWN and PAEZ, Circuit Judges.
Carrie Hale McCoin 1 appeals the district court’s denial of her petition for a
writ of habeas corpus, claiming ineffective assistance of counsel at trial. McCoin
was found guilty except for insanity of two counts of Assault in the Second Degree
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Although Petitioner uses her married name, McCoin, in the post-conviction
proceedings, she used her maiden name, Hale, in her state court proceedings.
and one count of Burglary in the First Degree. McCoin argues that her trial
counsel was ineffective because he (1) failed to call Gus Willemin to testify as a
witness on her behalf and (2) entered a defense of guilty except for insanity
without McCoin’s permission. The post-conviction court and the federal district
court rejected McCoin’s petition on the merits, and McCoin appeals. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
First, McCoin’s counsel testified that he did not call Willemin at trial
because his testimony would have been “cumulative and less effective” than the
testimony of witness for the defense Deputy Brown. Indeed, Deputy Brown
observed the bruises on McCoin’s entire body shortly after the incident in question,
and she wrote down her observations as part of her regular duties when conducting
a visual, unclothed exam. Although Willemin also claims to have observed
McCoin’s bruises, he could only have seen the bruises visible while McCoin was
dressed and it is unclear if he was relying on memory alone. Under these
circumstances, McCoin failed to rebut the presumption that her counsel’s decision
not to call Willemin at trial was “sound trial strategy.” Strickland v. Washington,
466 U.S. 668, 689 (1984) (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Because McCoin cannot show deficient performance by her counsel in failing to
call Willemin as a witness, the district court properly denied habeas relief on this
2
claim. See id. at 697 (holding that a court need not examine the prejudice suffered
by defendant due to alleged deficiencies if defendant makes an insufficient
showing that counsel’s performance was deficient and vice versa).
Second, McCoin’s counsel testified that, although McCoin pled not guilty,
she authorized him to raise a fall-back defense of guilty except for insanity. The
post-conviction court found McCoin’s counsel to be credible, and McCoin failed to
present evidence that the post-conviction court’s finding was objectively
unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). We therefore
affirm the denial of habeas relief on this claim.
AFFIRMED.
3