Milton Scott v. Eric Arnold ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON B. SCOTT, No. 15-15240
Petitioner - Appellant, D.C. No. 3:12-cv-04901-VC
v.
MEMORANDUM*
ERIC ARNOLD, Acting Warden, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Vince G. Chhabria, District Judge, Presiding
Argued and Submitted April 11, 2016
San Francisco, California
Before: WALLACE, SCHROEDER, and N.R. SMITH, Circuit Judges.
Petitioner Milton Scott appeals from the district court’s judgment denying
his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We
review the district court’s decision de novo, Murdaugh v. Ryan, 724 F.3d 1104,
1113 (9th Cir. 2013), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Under the Strickland standard for demonstrating a violation of the Sixth
Amendment right to effective counsel, a defendant must show that counsel’s
performance was deficient under a standard of objective reasonableness, and that
deficient performance prejudiced the defense so seriously as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
Scott contends that his counsel’s performance at the third trial was deficient, and
that there is a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different and thus he was
prejudiced by those errors.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), we give
considerable deference to state court decisions. However, where the state court has
provided an adjudication on the merits without a reasoned explanation, this court
conducts an independent review of the record to determine whether the state
court’s final resolution of the case constituted an unreasonable application of
clearly established Supreme Court precedent. Greene v. Lambert, 288 F.3d 1081,
1088–89 (9th Cir. 2002). “Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by which we can determine
whether a silent state court decision is objectively unreasonable.” Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
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We need not decide whether counsel’s performance was deficient because
Scott has not met his burden to demonstrate that deficient performance by his
counsel, if any, prejudiced the defense. Upon examination of what evidence the
factfinder would have had absent counsel’s alleged error, Scott has not
demonstrated a reasonable probability that the jury would have had a reasonable
doubt respecting guilt. See Strickland, 466 U.S. at 694–95.
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
There is ample additional evidence in the record to support the jury’s
verdict. Scott had a history of dispute with the victim, and after seeing him at the
convenience store and then leaving, chose to turn his car around, borrow his
friend’s gun, and shoot the victim multiple times. Scott had also presented an alibi
defense and planned to call witnesses to lie on his behalf, which likely damaged his
credibility once the prosecution introduced a surveillance video depicting the
events above on tape. Considering the evidence the jury had before it without the
witness audio tape, under the highly deferential Harrington standard, fairminded
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jurists could disagree on the correctness of the state’s decision on the ineffective
counsel claim, and federal habeas relief is denied.
AFFIRMED.
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