Donald Bohana v. Tom Vaughn ( 2010 )

FILED
NOT FOR PUBLICATION JUL 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD J. BOHANA, No. 08-56855
Petitioner - Appellant, D.C. No. 2:04-cv-03037-AHM-
MAN
v.
TOM E. VAUGHN, Warden of the MEMORANDUM *
California State Prison at Chuckawalla
Valley and JEANNE S. WOODFORD,
Director California Department of
Corrections,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted July 12, 2010 **
Pasadena, California
Before: FARRIS, HALL and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Donald J. Bohana appeals the district court’s denial of his 28 U.S.C. § 2254petition. Bohana was convicted of second degree murder in California state court.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm the
district court and decline to expand the certificate of appealability.
We review de novo a district court’s denial of a habeas petition. Mendez v.
Knowles, 556 F.3d 757, 767 (9th Cir. 2009). We must deny the petition unless the
state court’s decision was “either (1) contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by the Supreme Court
of the Untied States, or (2) based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” Id.Bohana argues that his trial counsel provided ineffective assistance. To
show ineffective assistance of counsel, the defendant must first show that counsel’s
performance was deficient and that it prejudiced the defense . Strickland v.
Washington, 466 US. 668, 687 (1984). Deficient performance is when “counsel’s
trial performance [is] objectively unreasonable ‘under prevailing professional
norms’ and under ‘all the circumstances’ of the particular case.” Pinholster v.
Ayers, 590 F.3d 651, 664 (9th Cir. 2009) (en banc) (quoting Strickland, 466 U.S. at
687-88).
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Bohana argues that his trial counsel, Mr. Braun, was deficient for failing to
investigate alternative defenses and for failing to inform and advise him of the
alternative defenses. We have held that “defense counsel must, ‘at a minimum,
conduct a reasonable investigation enabling him to make informed decisions about
how best to represent his client.’” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002)
(quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)) (emphasis in
original). “A defense attorney’s failure to consider alternate defenses constitutes
deficient performance when the attorney neither conducts a reasonable
investigation nor makes a showing of strategic reasons for failing to do so.” Id.(quotation marks and citation omitted). However, “[o]nce counsel reasonably
selects a defense, it is not deficient performance to fail to pursue alternative
defenses.” Id. at 807 (citation omitted).
Braun’s performance was not deficient. In previous cases where we found
counsel ineffective for failing to investigate and present alternative defenses, the
defenses selected were not viable and there were multiple witnesses that counsel
failed to investigate who would have easily yielded contradictory evidence to the
selected defenses. See Johnson v. Baldwin, 114 F.3d 835, 839 (9th Cir. 1997);
Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001); Rios, 299 F.3d at 806;
Sanders, 21 F.3d at 1455. Here, there were no witnesses that Braun could have
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interviewed who would have contradicted Bohana’s story. Braun read the police
reports, discussed with Bohana his version of the events, and also discussed the
plausibility of Bohana’s story with two experts, Drs. Baden and Egstrom. As
Braun aptly pointed out at the state evidentiary hearing, Bohana’s story to him was
similar to Bohana’s story to the police. Braun’s consultation with Dr. Baden was
consistent with Bohana’s story. Given Bohana’s insistence that he had not
committed any wrongdoing, it was reasonable for Braun to believe Bohana’s story
and use it. See Bean v. Calderon, 163 F.3d 1073, 1082-83 (9th Cir. 1998).
Furthermore, the viability of the defense selected bears on the reasonableness of
counsel’s actions. Turk v. White, 116 F.3d 1264, 1267 (9th Cir. 1997). Braun’s
selected defense was strong and not “incredibly lame.” See Johnson, 114 F.3d at
838.
Bohana’s contention that he was not consulted about any alternative defense
is in conflict with the record. Braun did consult with Bohana about the alternate
defense of manslaughter based on an altercation theory. Bohana rejected
approaching the prosecution with a manslaughter plea. He consistently maintained
that it had been a rescue situation and he was innocent. Braun reasonably chose to
present the rescue defense . As there was no deficient performance, we need not
consider the prejudice prong.
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Bohana seeks to expand the certificate of appealability to include two
uncertified issues. To expand a COA “[a] habeas petitioner’s assertion of a claim
must make a substantial showing of the denial of a constitutional right.” Mendez,
556 F.3d at 770 (quotation marks and citation omitted). Bohana has not done this.
Trial counsel’s decisions not to call the experts to testify and not to seek a
involuntary manslaughter jury instruction were both strategic choices, which are
“virtually unchallengeable.” Strickland, 466 U.S. at 690.
AFFIRMED.
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