Graham De-Luis-Conti v. M. Evans ( 2013 )

FILED
NOT FOR PUBLICATION MAR 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GRAHAM ROGER-LEE DE-LUIS- No. 09-17048
CONTI,
D.C. No. 4:05-cv-02245-SBA
Petitioner - Appellant,
v. MEMORANDUM *
M. S. EVANS, Warden, Salinas Valley
State Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted February 14, 2013 **
San Francisco, California
Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.
Graham Roger-Lee De-Luis-Conti appeals the district court’s denial of his
28 U.S.C. § 2254 petition. Conti challenges several state court convictions,
*
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).
claiming that he was denied effective assistance of counsel and that insufficient
evidence supported his conviction under California Penal Code sections 269(a)(5)
and 289(a). We have jurisdiction under 28 U.S.C. § 2253(a). We affirm.
We review de novo the district court's denial of a habeas corpus petition.
See, e.g., Ali v. Hickman, 584 F.3d 1174, 1181 (9th Cir. 2009) (citing Juan H. v.
Allen, 408 F.3d 1262, 1269 n.7 (9th Cir. 2005)). This case is governed by
AEDPA. 28 U.S.C. § 2254. Under § 2254(d), we review whether the last state
court decision on the merits:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
Once we have conducted an intrinsic review of the state court's fact finding
process, "the state court's findings are dressed in a presumption of correctness,
which then helps steel them against any challenge based on extrinsic evidence, i.e.,
evidence presented for the first time in federal court." Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004). Extrinsic evidence is sufficient to overturn the state
court's fact-finding "only if such new evidence amounts to clear and convincing
proof that the state-court finding is in error." Id. (citing § 2254(e)(1)).
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When reviewing a state court’s determination of a Strickland claim under
AEDPA, the question that we must ask is whether the state court’s application of
the Strickland standard was unreasonable, and not just whether defense counsel’s
performance fell below that standard. Harrington v. Richter, 131 S. Ct. 770, 785
(2011). “A state court's determination that a claim lacks merit precludes federal
habeas relief so long as fair-minded jurists could disagree on the correctness of the
state court’s decision.” Id. at 786 (internal quotation and citation omitted).
Conti claims that the California Supreme Court erred when it denied his
ineffective assistance of counsel claim on collateral review. Where, as here, the
state court has not provided a reasoned decision for its denial, we must “perform an
independent review of the record to ascertain whether the state court decision was
objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)
(internal quotation and citation omitted). Conti asserts that the state court’s
determination of his Strickland claim may be overturned under AEDPA because
the California Supreme Court did not conduct an evidentiary hearing to determine
the extent of his skin disease at the time of the assaults. This, Conti argues,
“resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
2254(d)(2). The California Supreme Court did not misinterpret Strickland. Its
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determination that an evidentiary hearing was unnecessary was not unreasonable.
Id.To prevail on his claim of ineffective assistance of counsel under Strickland,
Conti would need to show that his trial counsel’s performance was both deficient
and prejudicial. Strickland v. Washington, 466 U.S. 668, 686–93 (1984). His
counsel’s strategic choice not to obtain an expert opinion about Conti’s skin
condition satisfies neither of the prongs. See Harrington, 131 S. Ct. at 787. Conti
testified at trial that he did not walk around naked because he had “spots, boils,
[and] scar tissue” on his “buttocks, thighs, . . . and groin area” due to “[c]hronic
acne.” According to Conti, this testimony would have undermined the credibility
of the victims because it would have impeached their testimony that they did not
remember any distinguishing marks on his body. An attorney’s choice to impeach
a witness is a matter of trial strategy, see Gustave v. United States, 627 F.2d 901,
905 (9th Cir. 1980), and failing to impeach a witness on a clearly collateral matter
cannot be said to be outside of the “wide range” of reasonable professional
assistance, see Plascencia v. Alameida, 467 F.3d 1190, 1198–99 (9th Cir. 2006);
Bergman v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995). Conti’s convictions
do not necessitate a finding that the victims ever saw him nude, and Conti’s own
testimony placed the issue of his skin condition before the jury; his attorney’s
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choice not to expend funds to corroborate Conti’s testimony about this collateral
matter was not unreasonable.
His counsel’s decision also did not prejudice the outcome of Conti’s trial.
"With respect to prejudice, a challenger must demonstrate ‘a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different.'" Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S.
at 694). This was a collateral matter, so all that was at stake was witness
credibility. The assaults took place several years before trial, so the jury would
likely give minimal weight to the victims’ inability to remember distinguishing
marks on Conti’s body. Additionally, Conti’s attorney did attack the credibility of
the witnesses by presenting expert testimony to show that one victim’s diary
entries had been fabricated. “A jury's credibility determinations are . . . entitled to
near-total deference.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004).
Defense counsel’s choice not to launch an additional attack on the witnesses’
credibility by impeaching their testimony as to the collateral matter of Conti’s skin
condition did not affect the outcome of his trial. The California Supreme Court did
not misinterpret Strickland and therefore its determination that an evidentiary
hearing was unnecessary was not “an unreasonable determination of the facts in
light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
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And, of course, § 2254(e)(1) cannot provide relief. If evidence of his skin
condition could not have affected his habeas claim in state court, presenting this
same evidence in federal court after an evidentiary hearing certainly would not
provide a “clear and convincing” reason to overturn the state court’s factfinding
process. 28 U.S.C. § 2254(e)(1).
In his habeas petition in the district court, Conti also argued that his victims’
inconsistencies at trial made them incredible, and because their testimony
constituted the majority of the evidence against him, there was insufficient
evidence to support his conviction. On appeal, however, Conti argues for the first
time that the state court erred in holding that the evidence was sufficient to support
his conviction under Count 24 because the prosecution failed to prove every
element of the offense; he claims that the evidence put forth did not show that
Conti used force, as required by the statute. See Cal. Penal Code §§ 269(a)(5),
289(a). We will not address arguments that were not raised in the district court.
See, e.g., White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010).
AFFIRMED.
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