Jason Yates v. Larry Small , 357 F. App'x 40 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JASON YATES, No. 08-16962
Petitioner - Appellant, D.C. No. 3:04-cv-02445-WHA
v.
MEMORANDUM *
LARRY SMALL, Warden, California
State Prison at Calipatria, California,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted November 3, 2009
San Francisco, California
Before: HUG, RYMER and McKEOWN, Circuit Judges.
Petitioner Jason Yates seeks federal habeas relief under 28 U.S.C. § 2254 on
the grounds that he was denied a fair trial and effective assistance of counsel. The
district court denied the petition, and Yates now appeals. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Habeas relief may be granted only if we determine that the last reasoned
decision at the state court level was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the Untied States” or the decision “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). To grant relief, we must conclude that the state
court decision was “not only erroneous, but objectively unreasonable.” Brown v.
Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007) (internal quotations and subsequent
citations omitted).
Yates argues that he was denied effective assistance of counsel when the
trial court admonished the jury that his attorney was grossly negligent in reading
from a redacted portion of a witness’s testimony. The trial court also instructed the
jury to find that defense counsel “made such statements with the intention to
strengthen his arguments, to influence [its] deliberation.” Yates argues that these
statements were so strong that they must have led the jury to conclude that his
attorney was an untrustworthy liar who acted as he did because Yates’s case was so
weak.
The state urges us to review this instruction in light of Waddington v.
Sarausad, 129 S. Ct. 823, 831-32 (2009), and determine if the trial court’s
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instruction was reasonably likely to cause the jury to misapply the law in violation
of the Constitution, and if the state appellate court below unreasonably concluded
otherwise. Yates urges instead that we look to Holbrook v. Flynn, 475 U.S. 560,
570 (1986), and ask whether the trial court’s disparaging statements caused “an
unacceptable risk” of defense counsel’s misfeasance—an “impermissible factor
[ ]”—“coming into play.” Id. (citing Estelle v. Williams, 425 U.S. 501, 505
(1976)). Under either standard, there is no constitutional error here. While we
agree that the admonition was strongly worded, no clearly established federal law
supports the claim of a constitutional violation.
Yates also argues that the trial court wrongfully denied his request for new
counsel when he moved for a new trial. To determine whether the conflict between
Yates and his attorney justified appointing new counsel, the trial court held a
Marsden hearing as required under California law. People v. Marsden, 465 P.2d
44 (Cal. 1970). Marsden guarantees the hearing, but not the petitioner’s desired
result. As the district court recognized, the trial court went to great lengths to
provide Yates with effective assistance of counsel, including continuing the
Marsden hearing to allow Yates to more fully prepare and present his allegations.
The Supreme Court has not created, nor has the Ninth Circuit recognized, an
absolute right to substitute counsel when a petitioner wishes to move for a new
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trial. The trial court’s denial of the motion for new counsel was neither “contrary
to” nor an “unreasonable application of, clearly established Federal law.”
Yates further asserts he was denied the effective assistance of counsel when
his trial counsel: (1) failed to call a forensic expert or object to the prosecution’s
evidence regarding the shooting at issue; (2) failed to object to hearsay statements
implicating Yates as the shooter; and (3) failed to request a limiting instruction
regarding Yates’s prior “bad acts.” To establish ineffective assistance of counsel,
Yates must show both that the defense counsel’s performance fell below an
objective standard of reasonableness and that those failings prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the prejudice
prong, a petitioner must demonstrate a reasonable probability that the results of the
proceeding would have been different if counsel had not made the error. Id. at 694.
Considering the evidence in light of the strength of the prosecution’s case, as we
must, id. at 696, we conclude that none of these failings were prejudicial. We need
not reach the question of whether they were also objectively unreasonable.
Finally, Yates argues that these errors were cumulative and prejudicial.
Because this issue is uncertified, we need not consider it. Nonetheless, Yates’s
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contention lacks merit. The claimed errors were not prejudicial individually or
cumulatively.
AFFIRMED.
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