Deandre Howard v. Martin Biter , 474 F. App'x 631 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEANDRE MAURICE HOWARD, No. 12-55158
Petitioner - Appellee, D.C. No. CV 07-2680 VAP (SH)
v.
MEMORANDUM *
MARTIN BITER, Acting Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted July 9, 2012
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BENSON, District
Judge. *
*
Martin Biter, Acting Warden, appeals the district court’s order granting
California state prisoner Deandre Maurice Howard’s 28 U.S.C. § 2254 habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dee V. Benson, District Judge for the U.S. District
Court for Utah, sitting by designation.
petition on the basis of ineffective assistance of counsel. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Howard was convicted of one count of first-degree murder and one count of
attempted first-degree murder. He was sentenced to a term of seventy-five years to
life in state prison, plus another consecutive life term. Howard filed a petition for
writ of habeas corpus, alleging inter alia, that his trial counsel was ineffective for
failing to interview, investigate and/or call the only surviving victim, Arthur
Ragland, to testify on Howard’s behalf at trial.
The district court initially denied Howard’s § 2254 petition. On appeal, we
reversed in part and remanded for an evidentiary hearing on Howard’s ineffective
assistance of counsel claim, stating that “if Ragland was ready and willing to
testify as to Howard’s innocence, and Howard was deprived of such testimony
because of his attorney’s shoddy investigation, our confidence in the jury’s verdict
would be significantly undermined.” Howard v. Clark, 608 F.3d 563, 573 (9th Cir.
2010).1
Following the evidentiary hearing we ordered, the district court made
numerous factual findings and determined that the evidence supported the
1
This court is bound by the law of the case in matters concerning the
same habeas petition. See Alaimalo v. United States, 645 F.3d 1042, 1049 (9th Cir.
2011).
2
conclusion we previously contemplated: that Ragland was ready and willing to
testify that Howard was not the shooter, and Howard was deprived of this essential
testimony because of counsel’s deficient investigation.
The Warden has failed to satisfy the highly deferential standard of showing
that the district court’s factual findings were clearly erroneous. Because the
district court’s findings are “plausible in light of the record viewed in its entirety,”
they will not be reversed on appeal. McClure v. Thompson, 323 F.3d 1233, 1240
(9th Cir. 2003) (internal quotations marks omitted).
AFFIRMED.
3