Denzel Crisp v. Patrick Covello ( 2023 )

FILED
NOT FOR PUBLICATION
JAN 11 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENZEL DEMAR CRISP, No. 19-16987
Petitioner-Appellant, D.C. No. 2:15-cv-00938-JKS
v.
MEMORANDUM*
PATRICK COVELLO, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Argued and Submitted November 16, 2022
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,** District
Judge.
Denzel Crisp appeals from the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 28 U.S.C. § 2253(a). We review the district court’s denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Crisp’s habeas petition de novo. See Weeden v. Johnson, 854 F.3d 1063, 1069 (9th
Cir. 2017). We granted a certificate of appealability as to one question: whether
trial counsel rendered ineffective assistance. Because the parties are familiar with
the history of this case, we need not recount it here. We affirm.
I
The California Superior Court’s decision that defense counsel did not render
constitutionally ineffective assistance of counsel for failing to investigate, obtain,
and introduce expert-opinion evidence from an eyewitness-testimony expert was
not an unreasonable application of clearly established federal law, as determined
by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1) (setting the
standard for review under the Antiterrorism and Effective Death Penalty Act of
1996).
“[W]e have made it clear that we ‘adhere to the position that skillful cross
examination of eyewitnesses, coupled with appeals to the experience and common
sense of jurors, will sufficiently alert jurors to specific conditions that render a
particular eyewitness identification unreliable.’” Howard v. Clark, 608 F.3d 563,
574 (9th Cir. 2010) (citations omitted).
Here, the California Superior Court held that there was “no indication that
the testimony would have been admitted” under People v. Datt, 111 Cal. Rptr. 3d
2
132, 139 (2010). And even if admitted, Crisp “acknowledges that substantial
portions of the declarations relating to Reyes’s and Meraz’s statements could have
been excluded.” In Datt, the California Court of Appeal held that expert testimony
is not required in every case involving uncorroborated eyewitness identification.
111 Cal. Rptr. at 139.
Neither Strickland and its progeny, nor “prevailing professional norms,”
require trial counsel to consult or call an eyewitness expert; therefore, the state
court’s conclusion that eyewitness expert testimony need not have been admitted
was not objectively unreasonable. Strickland v. Washington, 466 U.S. 668, 688
(1984).
II
The California Superior Court’s conclusion that defense counsel did not
render constitutionally ineffective assistance of counsel for failing to call at trial a
firearms expert was not an objectively unreasonable application of clearly
established federal law as determined by the United States Supreme Court.
The state court determined that counsel’s failure to call the witness at trial
was not unreasonable because “witnesses described hearing two or three gunshots,
meaning that one or more shell casings fell outside the vehicle,” which Venkus did
not address. Because the expert focused only on the cartridge found inside the
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vehicle, the court discounted his opinion’s probative value. Indeed, the court
concluded that “[n]othing in [Venkus’s] opinion indicates that he examined the
casing, could date when the round was fired, or considered that the casing was not
in fact from the shooting in this case.”
The state court’s conclusion was not objectively unreasonable because a
fairminded jurist could determine from the record that counsel had legitimate
reasons for not calling the witness. Counsel did state in a declaration that in
hindsight, he should have called the witness and could not think of a tactical reason
for why he did not call the witness. However, a fairminded jurist could reasonably
conclude that the “declaration suffers from multiple weaknesses that would have
been readily apparent to a jury and exploitable by opposing counsel.” Lopez v.
Allen, 47 F.4th 1040, 1049 (9th Cir. 2022). Therefore, it was not objectively
unreasonable for the state court to conclude that counsel’s failure to call the
witness at trial did not constitute ineffective assistance of counsel.
III
The state court’s conclusion that trial counsel did not provide ineffective
assistance for failing to persuade the trial court to admit the testimony of Ogden
Shipman was not objectively unreasonable. Crisp contends that if Shipman’s
4
testimony had been admitted, there is a reasonable probability that it would have
altered the case’s outcome.
The state court rejected this claim because Shipman’s testimony “would
merely have impeached Brown.” But “[m]uch of Brown’s testimony was already
impeached, including his implausible story explaining his fingerprint on the gun’s
magazine, his denial to police that he had a gun, his claim that police slammed his
head against the car, etc.” Moreover, the state court concluded that Brown’s
impeachment would not have affected the trial’s outcome because “jurors could
have disbelieved Brown’s testimony entirely and still likely would have come to
the same conclusion.”
Given the entirety of the record, the state court’s determination that the
admission of Shipman’s testimony would not have undermined confidence in the
result of the trial was not objectively unreasonable.
IV
Crisp contends that the cumulative effect of counsel’s errors warrants
reversal of his conviction. “The Supreme Court has clearly established that the
combined effect of multiple trial court errors violates due process where it renders
the resulting trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th
Cir. 2007). Given our conclusion that the state court’s determination of the alleged
5
errors was not objectively unreasonable, this claim fails. We “cannot consider the
cumulative effect of non-errors.” Williams v. Filson, 908 F.3d 546, 570 (9th Cir.
2018).
V
The district court did not abuse its discretion in denying an evidentiary
hearing. A federal court may not hold an evidentiary hearing on a claim for which
a petitioner failed to develop a factual basis in state court unless the petitioner
shows that (1) the claim relies on a “factual predicate that could not have been
previously discovered through the exercise of due diligence,” 28 U.S.C.
§ 2254(e)(2)(A)(ii), and (2) “the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the [petitioner] guilty of the underlying
offense,” id. § 2254(e)(2)(B). Even if a petitioner meets these requirements, a
federal habeas court is still “not required to hold a hearing or take any
evidence”—that decision “must be informed by principles of comity and finality
that govern every federal habeas case.” Shinn v. Ramirez, 142 S. Ct. 1718, 1734
(2022).
An evidentiary hearing was unnecessary here because the state record
contained sufficient facts to adjudicate Crisp’s petition. Moreover, Crisp failed to
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assert a colorable claim for relief. See Bashor v. Risley, 730 F.2d 1228, 1233–34
(9th Cir. 1984).
AFFIRMED.
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