Andres Gonzalez v. Edward J. Caden , 513 F. App'x 672 ( 2013 )

FILED
NOT FOR PUBLICATION
MAR 21 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDRES GONZALEZ, No. 12-55018
Petitioner - Appellant, D.C. No. 2:04-cv-04795-GAF-PLA
vs.
MEMORANDUM *
EDWARD J. CADEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted March 4, 2013
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and HADDON, District
Judge.**
Andres Gonzalez appeals the district court’s denial of his 28 U.S.C. § 2254Petition for Writ of Habeas Corpus challenging his convictions for attempted
murder, shooting at an occupied motor vehicle, and six counts of assault with a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sam E. Haddon, United States District Judge for the
District of Montana, sitting by designation.
firearm. He contends that trial counsel provided ineffective assistance in violation
of the Sixth Amendment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253
and affirm the district court’s order denying habeas relief.
We review the district court’s denial of a habeas petition de novo.
Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012), petition for cert. filed, 81
U.S.L.W. 3422 (U.S. Nov. 15, 2012)(Nos. 12894, 12A336). Findings of fact are
reviewed for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs our review of the petition. Under AEDPA, habeas relief may not be
granted unless the state court’s adjudication of a claim “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 the
State court’s conclusions were “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); see also Harrington v. Richter, 131 S. Ct. 770, 787–88 (2011) (describing
AEDPA deference owed to a state court’s ruling on an ineffective assistance of
counsel claim).
To prove ineffective assistance of counsel, Gonzalez must show: (1) that
counsel’s performance was deficient; and (2) that the deficient performance
2
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s performance is deemed deficient if it is objectively unreasonable under
prevailing professional norms. Id. at 688. To demonstrate prejudice, Gonzalez
must show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. A reasonable
probability is defined as “a probability sufficient to undermine confidence in the
outcome.” Id.Gonzalez claims that his counsel rendered ineffective assistance because she
failed to present an eyewitness at trial and that he suffered prejudice as a result.
Gonzalez properly raised and exhausted his claim in state court where it was
rejected. We conclude there was a reasonable basis for rejecting the claim.
Although trial counsel’s performance was deficient, it was not prejudicial.
Gonzalez was convicted on the strength of multiple eyewitness
identifications. All six victims in this case identified Gonzalez as the shooter
during field show-ups on the night of the incident. Three of the six victims
identified him as the shooter at trial. Nothing in the record showed that any of the
victims had any particular motivation to falsely accuse Gonzalez.
The uncalled eyewitness, Dagoberto Cardona, was not a disinterested
witness. On the night of the incident, law enforcement located Cardona hiding
3
along with Gonzalez and Michael Valencia in a carport near the trailer park where
the shooting occurred. All six victims also identified Valencia as a person
involved in the incident during field show-ups.
It was not unreasonable for the state court to conclude under these
circumstances that Cardona’s proposed testimony was not reasonably likely to
have altered the outcome of the trial. See Strickland, 466 U.S. at 696; see also
Richter, 131 S. Ct. at 792.
AFFIRMED.
4