Ronald Bishop v. Neil McDowell ( 2023 )

FILED
NOT FOR PUBLICATION
APR 4 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD STEVEN BISHOP, No. 22-55324
D.C. No.
Petitioner-Appellant, 5:21-cv-00266-JGB-MAR
v.
MEMORANDUM*
NEIL MCDOWELL, Warden, Ironwood
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted March 6, 2023**
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Concurrence by Judge COLLINS.
Ronald Bishop appeals the district court’s denial of his petition for a writ of
habeas corpus. Bishop claims that his original attorney, who represented him at
*
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).
trial and on Bishop’s first appeal, was constitutionally ineffective under Strickland
v. Washington, 446 U.S. 668 (1984). Because both his claims are for ineffective
assistance and are presented in the context of a habeas petition, we review under
the “doubly” deferential standard of considering the Antiterrorism and Effective
Death Penalty Act (AEDPA) and Strickland in tandem. Rowland v. Chappell, 876
F.3d 1174, 1183 (9th Cir. 2017). “Thus, under AEDPA, ‘[t]he pivotal question is
whether the state court’s application of the Strickland standard was unreasonable.’”
Id. (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). We apply this
standard to “the state court’s last reasoned decision on the claim,” Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (internal quotation
marks and citation omitted), which in this case is the state appellate court’s opinion
denying Bishop’s state habeas petition.
We first consider Bishop’s arguments for why his counsel was ineffective at
trial. Bishop contends that his trial counsel failed to make two arguments in
support of his motions to suppress a search warrant that led to the police
discovering evidence key to Bishop’s conviction. First, Bishop asserts that his trial
counsel should have argued the following: an officer’s bare opinion that someone
who molests children is likely to possess child pornography is insufficient to
establish probable cause to search a suspect’s computer for child pornography.
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Bishop is correct in noting that we have endorsed such a proposition in the context
of search warrants in which the sole basis for searching the subject’s devices was
that there was probable cause that they would contain child pornography. See
United States v. Needham, 718 F.3d 1190, 1194–95 (9th Cir. 2013); Dougherty v.
City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). But the California Court of
Appeal reasonably concluded that these decisions were not controlling in the
context of a search warrant in which there was probable cause to search the
suspect’s devices based on “the suspect’s relationship to the crime under
investigation”—here, child annoyance. The attesting officer amply detailed how
Bishop’s electronic communications with John Doe 1 indicated there might be
evidence of child annoyance on Bishop’s electronic devices to justify the warrant.
Cf. Needham, 718 F.3d at 1193 (noting that the warrant affidavit in that case failed
even to include “any facts suggesting that Needham possessed or used a computer
or any other electronic devices, whether for illicit purposes or otherwise”);
Dougherty, 654 F.3d at 899 (noting, inter alia, that “[t]here is no evidence of
conversations with students about sex acts” and that “the affidavit does not even
verify that Dougherty owned a computer or the other targets of the search or had
internet service or another means of receiving child pornography at his home”).
Accordingly, raising Needham and Dougherty in challenging the search warrant
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here would not have undermined the Court of Appeal’s conclusions, on direct
appeal, that the warrant affidavit sufficiently established that there was probable
cause to “believe evidence of the crime of child annoyance or contacting a minor
with a sexual intent would be obtained on [Bishop’s] electronic devices” and that
“[t]his alone would be sufficient for the search and the discovery of child
pornography would have been incidental to the other search.” As a result, the state
habeas court did not reach an objectively unreasonable conclusion in holding that
trial counsel was not deficient in failing to raise Needham and Dougherty in
challenging the search warrant.
Bishop also contends that his trial counsel should have argued that, under
Riley v. California, 573 U.S. 373 (2014), a general suspicion that evidence of
criminal activity will be found in a suspect’s home does not justify searching the
suspect’s electronic devices. But, as the California Court of Appeal accurately
explained, the warrant affidavit detailed how “communications between Bishop
and the minor victim suggested . . . . that the communications with the victim were
occurring over Bishop’s cell phone and the internet, presumably through his
computer.” The state court was not objectively unreasonable in holding that
Bishop’s trial lawyer’s decision to not make this argument was not ineffective
assistance. Nor, contrary to Bishop’s argument, do we think his arguments would
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have been successful if made in tandem.
Bishop also argues that his trial counsel’s representation of him on appeal
was ineffective assistance. Unlike the prior issue, this argument is not certified for
an appeal, so we treat his briefing on the issues as a request to expand the scope of
the certification. Ninth Circuit Rule 22-1(e); Robertson v. Pichon, 849 F.3d 1173,
1187 (9th Cir. 2017). Here, the only prejudice Bishop claims resulted from his
counsel’s conflicts of interest on appeal was his failure to argue the same points we
considered above. Because those claims were without merit, Bishop has not met
the threshold standard of making a substantial showing of the denial of a
constitutional right required for us to consider the uncertified argument.
Robertson, 849 F.3d at 1187 (standard of review).
AFFIRMED.
COLLINS, Circuit Judge, concurring:
I concur in the memorandum disposition. I write separately only to note that
I agree with Judge Tallman’s view that, to the extent that Dougherty v. City of
Covina, 654 F.3d 892 (9th Cir. 2011), “declar[ed] categorically that there is no
nexus between child molestation and collection of child pornography,” it was
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wrongly decided. United States v. Needham, 718 F.3d 1190, 1202 (9th Cir. 2013)
(Tallman, J., concurring). It seems eminently reasonable to conclude that, if a
suspect has a demonstrated sexual interest in young children, has recently
affirmatively acted on that interest, and has electronic devices, there is a “fair
probability” that those devices will contain child pornography. Illinois v. Gates,
462 U.S. 213, 238 (1983) (holding that probable cause only requires a “fair
probability”). As Judge Tallman explained, we “should not so easily dispatch” the
“common-sense conclusion[]” that would link “lewd and lascivious conduct
involving young children with possession of pornographic images of the objects of
a predator’s sexual desires.” Needham, 718 F.3d at 1203 (Tallman, J., concurring);
see also Dougherty, 654 F.3d at 901 (Brewster, D.J., concurring in the judgment)
(concluding that “it is a common sense leap that an adult male, who teaches sixth
graders, engaged in this type of inappropriate conduct would likely possess child
pornography”). In an appropriate case, “[w]e need to revisit this issue and consign
hypertechnical decisions like Dougherty”—and Needham—“to the dust bin of
erroneous blanket legal pronouncements devoid of reality.” Needham, 718 F.3d at
1203 (Tallman, J., concurring).
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