Adrian Hunter v. Warren Montgomery ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 30 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN DEON HUNTER, No. 15-55265
Petitioner-Appellant, D.C. No.
2:13-cv-09224-ODW-FFM
v.
WARREN MONTGOMERY, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted August 1, 2016**
Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges, and WHYTE,*** Senior
District Judge.
*
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).
***
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
Adrian Deon Hunter appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition challenging his California conviction for four counts of
second degree robbery and one count of street terrorism. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The California Court of Appeal reasonably determined that Hunter’s trial
counsel did not render ineffective assistance by failing to object to the admission of
a minute order containing co-defendant Maurice Lotten’s no-contest plea. “An
ineffective assistance claim has two components: A petitioner must show that
counsel’s performance was deficient, and that the deficiency prejudiced the
defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). Because the minute order
was admissible under California law, trial counsel’s failure to object to the minute
order’s admission did not constitute deficient performance. See Juan H. v. Allen,
408 F.3d 1262, 1273 (9th Cir. 2005) (“[T]rial counsel cannot have been ineffective
for failing to raise a meritless objection.”).1
1
Hunter expressly waived his claim that the admission of the minute order
violated the Confrontation Clause in his opening brief. See Styers v. Schriro, 547
F.3d 1026, 1028 n.3 (9th Cir. 2008) (per curiam) (finding that certified allegations
not addressed in appellant’s opening brief were waived). Whether or not that
waiver affected the claim of ineffective assistance of counsel is immaterial as the
failure to object on that ground would in any event not constitute ineffective
assistance of counsel.
-2-
Moreover, the Court of Appeal reasonably concluded that there was no
“reasonable probability” that, but for trial counsel’s failure to object to the
admission of the minute order, “the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). First, the
evidence of the robberies was overwhelming: several witnesses testified that the
robberies occurred, and one robbery was captured by video surveillance. Second,
the prosecution presented ample evidence of Lotten’s participation in the robberies:
several witnesses identified Lotten as one of the perpetrators, and the prosecution’s
gang expert identified Lotten as the gunman in a video recording of one of the
robberies. Finally, other evidence independently established the association
between Hunter and Lotten and Hunter’s gang membership.
AFFIRMED.
-3-