Sione Lui v. Mike Obenland ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIONE LUI, No. 19-35744
Petitioner-Appellant, D.C. No. 2:18-cv-00893-TSZ
v.
MEMORANDUM*
MIKE OBENLAND,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted September 4, 2020**
Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and SOTO,*** District Judge.
Washington state prisoner Sione Lui appealed the district court’s denial of
his habeas petition alleging ineffective assistance of counsel. We have jurisdiction
*
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 James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
under 28 U.S.C. §§ 1291 and 2253 and review denials of habeas relief de novo.
Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). We affirm.
After Lui was convicted of second-degree murder in state court and
exhausted his appeals, he filed a state personal restraint petition alleging that his
counsel had been ineffective for sleeping through trial, failing to adequately
investigate scent-track evidence, and failing to object to detective testimony and
closing argument statements. The Washington Court of Appeals denied his
petition, and the Washington Supreme Court affirmed. Lui then filed a federal
habeas petition, alleging the same ineffective assistance of counsel claims, which
the district court denied upon the recommendation of the magistrate judge.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), this court may not grant relief with respect to any claim that a state
court adjudicated “on the merits,” unless that decision either: (1) “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”;
or (2) “resulted in a decision that 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). The Washington Supreme Court did not act contrary to clearly
established federal law or unreasonably determine the facts in denying Lui relief.
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First, the Washington Supreme Court acted in accordance with existing
Supreme Court precedent in requiring a showing of prejudice pursuant to
Strickland v. Washington, 466 U.S. 668 (1984), for petitioner’s allegations of
sleeping counsel. The Supreme Court has not extended the presumption of
prejudice reserved for extraordinary cases of ineffective assistance by United
States v. Cronic, 466 U.S. 648 (1984), to cases of sleeping counsel. The Supreme
Court has also declined to categorically extend the doctrine to any temporary
absence unless counsel’s absence was during a “critical stage.” Woods v. Donald,
575 U.S. 312, 317–18 (2015). The Washington Supreme Court was not required to
extend the presumption of prejudice to a new context. White v. Woodall, 572 U.S.
415, 426 (2014). Nor was the state court’s decision to apply Strickland to
contested claims of sleeping counsel objectively unreasonable. The court noted
that Lui had not cited any particular moment when counsel was allegedly sleeping,
and the court's own review of the trial record disclosed no indication that counsel
had slept or was inattentive.
Second, the Washington Supreme Court did not unreasonably apply
Strickland to Lui’s claims that his attorney failed to adequately investigate and
present opposing expert testimony to rebut the state’s scent-track evidence. Except
in particularly egregious cases, claims of ineffective assistance of counsel are
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analyzed under Strickland, which requires that a defendant demonstrate both that
his counsel’s performance was deficient and that counsel’s deficient performance
prejudiced him. 466 U.S. at 687. Review of counsel’s performance is “highly
deferential.” Id. at 689–91 (“[S]trategic choices made after thorough
investigation” are “virtually unchallengeable,” and “strategic choices made after
less than complete investigation” are reasonable if limited investigation is
supported by “reasonable professional judgments.”); Dows v. Wood, 211 F.3d 480,
487 (9th Cir. 2000) (Counsel’s tactical decisions at trial are “given great
deference.”). The Washington Supreme Court reasonably determined that
counsel’s performance was not deficient and that Lui was not prejudiced. The
court deferred to counsel’s consultation of an expert as well as his strategy of
cross-examining rather than presenting opposing expert testimony. The court also
found that Lui had failed to prove prejudice because the body of evidence against
him was strong, even without the scent-tracking evidence. The Washington
Supreme Court’s application of Strickland was not unreasonable.
Third, the Washington Supreme Court’s determination that Lui’s counsel
was not ineffective by his failure to object to improper detective testimony and
closing argument statements was not unreasonable. The court determined that
counsel’s failure to object to the detective’s improper testimony was not deficient
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because the statements, which were elicited by counsel, reflected an apparent
strategy to discredit the detective and lay the foundation for counsel’s theory of the
case. Dows, 211 F.3d at 487. The Washington Supreme Court’s deference to
counsel’s trial strategy was not improper. The court also found that Lui was not
prejudiced by counsel’s failure to object to the prosecutor’s closing argument
because the improper statements were an isolated portion of an extensive closing
argument that focused on the core evidence in support of the state’s case against
Lui. The Washington Supreme Court did not unreasonably apply Strickland to
Lui’s claims of ineffective assistance on these grounds.
Finally, the Washington Supreme Court did not err in denying Lui an
evidentiary hearing on these claims. The Washington Supreme Court reasonably
considered and rejected Lui’s claims on the merits. See Sumner v. Mata, 449 U.S.
539, 546–47 (1981) (pre-AEDPA version of § 2254(d) requires state courts to have
considered and rejected claims on the merits, but the statute does not “specify any
procedural requirements.”); Lambert v. Blodgett, 393 F.3d 943, 965–66, 967 (9th
Cir. 2004) (The state court need only have “reached the merits of the petitioner’s
claim without dismissing it on procedural grounds.”).
AFFIRMED.
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