Lyle Gilbert v. Daniel Paramo ( 2019 )

FILED
NOT FOR PUBLICATION
FEB 22 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYLE ROBERT GILBERT, No. 18-15162
Petitioner-Appellant, D.C. No. 3:16-cv-03449-VC
v.
MEMORANDUM*
DANIEL PARAMO, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted February 11, 2019**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
Lyle Gilbert appeals the district court’s order dismissing his petition for writ of
habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s order de novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir. 2008).
We affirm.
Gilbert was convicted of two counts of sexual penetration of a child ten years
of age or younger for molesting his daughter on two occasions. Gilbert’s wife and
daughter testified against him at trial, and his confession to police was played for the
jury. Gilbert’s counsel called an expert on false confessions and extensively
cross-examined Gilbert’s daughter and wife, pointing out their possible reasons to lie.
Gilbert argues that his trial counsel was constitutionally ineffective for failing
to call an expert witness to testify “that Savanna was either lying or believed an
untruth.” An ineffective assistance of counsel claim involves a two-prong inquiry.
“First, the defendant must show that counsel’s performance was deficient.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the
deficient performance prejudiced the defense.” Id. Gilbert’s counsel did not perform
deficiently. There was no evidence to suggest that Savanna’s memories were false or
implanted, and failure to call an expert is not deficient where there is no evidence to
support a defense. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
Furthermore, counsel’s strategic decision to impeach Savanna’s testimony by
cross-examining her about her motivations to lie was reasonable in light of the
evidence available to support that theory.
2
We decline to expand the certificate of appealability to address the two
uncertified claims Gilbert raises. Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th
Cir. 2012).
AFFIRMED.
3