Joel Sempier v. Renee Baker ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL ROSS SEMPIER, No. 20-17249
Petitioner-Appellant, D.C. No.
3:18-cv-00465-RCJ-WGC
v.
RENEE BAKER, et. al. MEMORANDUM*
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted December 10, 2021**
San Francisco, California
Before: MURGUIA, Chief Judge, and IKUTA and VANDYKE, Circuit Judges.
Nevada state prisoner Joel Ross Sempier appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for sexual
assault. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
We review the district court’s denial of Mr. Sempier’s § 2254 petition de
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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novo. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), overruled on other
grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). A district court may not grant
a § 2254 petition unless the state court’s decision was (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “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).
Mr. Sempier claims that trial counsel rendered ineffective assistance under
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Sempier has
the burden of showing that trial counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Id. at 687. The deficiency prong
“requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.To prove prejudice, Mr. Sempier must show that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Because the Strickland standard requires a “highly
deferential” assessment of counsel’s performance, and the Nevada Supreme Court’s
decision is entitled to deference under 28 U.S.C. § 2254(d), this Court’s review is
“doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations
omitted).
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First, Mr. Sempier has not shown that trial counsel rendered deficient
performance by failing to adequately impeach, investigate, or rebut the sexual
assault nurse’s testimony, nor by failing to object to the prosecution’s purported
mischaracterization of that testimony in its closing argument. Trial counsel’s
effective cross-examination established that the nurse’s evidence lacked probative
value. Mr. Sempier has not demonstrated that further investigation would have been
helpful, see Djerf v. Ryan, 931 F.3d 870, 881–82 (9th Cir. 2019) (finding no
deficiency where petitioner has not shown additional, helpful evidence was
available), nor that a rebuttal witness was necessary, where “cross-examination
[was] sufficient to expose defects in [the] expert’s presentation,” see Harrington v.
Richter, 562 U.S. 86, 111 (2011). Mr. Sempier likewise has not demonstrated that
the prosecution’s comment during closing arguments was a misstatement—because
he has not shown there was any significant difference between examinees and
victims—nor that trial counsel was deficient for choosing to emphasize that the
nurse’s evidence was not probative rather than objecting to the comment. See Ayala
v. Chappell, 829 F.3d 1081, 1115 (9th Cir. 2016) (noting counsel was not deficient
for failing to object to ambiguous statement).
Second, Mr. Sempier has not established that trial counsel rendered
ineffective assistance for failure to impeach the victim on various issues, including
her recollection of the assault, her conduct after the assault, and her prior interactions
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with Mr. Sempier. Trial counsel did impeach the victim during cross-examination
on many of the inconsistencies Mr. Sempier identified, and additional impeachment
evidence “would have been largely cumulative,” see Doe v. Ayers, 782 F.3d 425,
431 (9th Cir. 2015). Mr. Sempier therefore has not shown trial counsel rendered
deficient performance. Id.As for Strickland’s prejudice prong, Mr. Sempier cannot demonstrate a
reasonable likelihood of a different trial outcome “for failure to present [evidence
that was] most likely cumulative” of the nurse and victim’s testimony on cross-
examination. See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009). Nor
was Mr. Sempier prejudiced by trial counsel’s failure to object to the prosecution’s
brief comments during closing arguments because the judge explained to the jury
that closing arguments are not evidence. See Cunningham v. Wong, 704 F.3d 1143,
1159 (9th Cir. 2013).
The Nevada Supreme Court did not unreasonably apply the Strickland
standard in denying these claims. See also Harrington, 562 U.S. at 109 (holding
state court’s conclusion that trial counsel did not render ineffective assistance for
failure to investigate blood evidence or present expert testimony was not
unreasonable application of Strickland); Yarborough v. Gentry, 540 U.S. 1, 6–7
(2003) (holding state court’s conclusion that trial counsel was not constitutionally
ineffective despite counsel’s failure to employ all possible impeachment tactics was
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not unreasonable application of Strickland); Ayala, 829 F.3d at 1115 (finding state
court’s determination that trial counsel did not render ineffective assistance for
failure to object to misstatement in closing argument was not unreasonable
application of Strickland).
To the extent Mr. Sempier raises uncertified claims in his briefs, we construe
his arguments as a motion to expand the certificate of appealability. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).
Because Mr. Sempier has not shown “reasonable jurists would find the district
court’s assessment of [his uncertified ineffective assistance] claims debatable or
wrong,” we deny the motion. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mr. Sempier’s petition is therefore DENIED.
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