Emerson Paul v. Sandra Pennywell , 612 F. App'x 453 ( 2015 )

FILED
NOT FOR PUBLICATION
AUG 10 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMERSON PAUL, No. 12-56509
Petitioner - Appellant, D.C. No. 2:10-cv-01563-JSL-JCG
v.
MEMORANDUM*
SANDRA PENNYWELL,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Submitted August 6, 2015**
Pasadena, California
Before: SILVERMAN, SACK***, and WARDLAW, Circuit Judges.
Emerson Paul appeals the district court’s denial of his 28 U.S.C. § 2254
petition. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The
*
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).
***
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
state court’s determination that Paul’s appellate counsel was not ineffective for
failing to challenge the admission of the black shirt on direct appeal is not contrary
to, or an unreasonable application of, clearly established Supreme Court precedent.
28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100-01 (2011).
The Supreme Court has made clear that “appellate counsel who files a merits
brief need not (and should not) raise every nonfrivolous claim, but rather may
select from among them in order to maximize the likelihood of success on appeal.”
Smith v. Robbins, 528 U.S. 259, 288 (2000). The Supreme Court has explained
that “[e]xperienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S.
745, 751-52 (1983). Considering the potential strategic choices behind counsel’s
decision to appeal only on the basis of the ammunition, it was not unreasonable to
conclude that “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984); see
Robbins, 528 U.S. at 288 (“Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of
counsel be overcome.” (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986))). The black shirt was found within an open closet, while the ammunition
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was found in a closed drawer. Furthermore, it was reasonable to decide that the
ammunition, matching casings found at the scene, was more harmful to Paul’s
defense than the black shirt. Accordingly, the determination that counsel’s
performance was not ineffective for failing to challenge the admission of the black
shirt is not contrary to, or an unreasonable application of, clearly established
Supreme Court precedent.
Furthermore, even if appellate counsel’s failure to appeal the admission of
the black shirt was ineffective, it is not unreasonable to hold that there was no
resulting prejudice. Under Strickland, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. There were multiple
identifications of Paul as one of the shooters and multiple pieces of evidence
linking Paul to the 40 Avalons gang, independent of the black shirt. It was not
contrary to, or an unreasonable application of, clearly established Supreme Court
precedent to hold that there is not a reasonable probability that the result of the trial
would have been different if the black shirt had been excluded from evidence.
In addition, the California Supreme Court’s factual findings were not
objectively unreasonable under 28 U.S.C. § 2254(d)(2). By the time Paul’s state
habeas petition was filed, the record was already well developed with respect to the
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suppression and prejudice issues, as a result of the suppression motion before the
trial court, the appeal before the California Court of Appeal, and the trial record.
The state court’s decision not to hold an evidentiary hearing does not render its
determination objectively unreasonable under § 2254(d)(2). See Hibbler v.
Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012).
Lastly, as Paul has not established a meritorious claim under § 2254(d), he is
not entitled to a remand to the district court for an evidentiary hearing. See Cullen
v. Pinholster, 131 S. Ct. 1388, 1411 n.20 (2011).
AFFIRMED.
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