Donald Hamilton v. Brad Cain ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD WAYNE HAMILTON, No. 21-35326
Petitioner-Appellant, D.C. No. 2:18-cv-01226-JR
v.
MEMORANDUM*
JAMIE MILLER,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Argued and Submitted April 14, 2022
Seattle, Washington
Before: HAWKINS and FORREST, Circuit Judges, and RESTANI,** Judge.
Petitioner Donald Hamilton (“Hamilton”) appeals the district court’s denial
of his 28 U.S.C § 2254 habeas corpus petition challenging his conviction for first-
degree Sexual Abuse and first-degree Sodomy. Because the parties are familiar
with the facts, we do not recount them here, except as necessary to provide context
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
for our ruling. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We
review de novo a district court’s denial of a habeas petition. Murray v. Schriro,
882 F.3d 778, 801 (9th Cir. 2018). We affirm.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our
review. See Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under AEDPA, we
cannot grant habeas relief unless the state court proceedings resulted in a decision
that 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).
Hamilton argues that the trial court unreasonably applied clearly established
federal law when it denied his request for a continuance. On this issue, we review
the trial court’s decision, as it is the last reasoned state court decision. See Van
Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). A trial court is afforded “wide
latitude in balancing the right to counsel of choice against the needs of fairness,
and against the demands of its calendar.” United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006) (citations omitted). “[O]nly an “unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay
violates the right to assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11–12
(1983) (citation omitted). The trial court’s denial of a continuance was not an
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unreasonable exercise of its discretion or an unreasonable application of Federal
law as it reasonably considered that new counsel had not been obtained at the time
of the motion and that trial had been postponed twice previously. See Miller v.
Blackletter, 525 F.3d 890, 896 (9th Cir. 2008).
Hamilton next argues that he received ineffective assistance of counsel
under Strickland v. Washington due to trial counsel’s failure to object to vouching
by the victim’s mother and the prosecutor. 466 U.S. 668 (1984). On this issue, we
review the state post-conviction court’s opinion. See Van Lynn, 347 F.3d at 738.
When reviewing a state court’s application of Strickland under AEDPA, we “must
afford both the state court and the defense attorney the benefit of the doubt.”
Carter v. Davis, 946 F.3d 489, 503 (9th Cir. 2019) (citation omitted). Our review,
therefore, is “doubly deferential.” Id. (citation omitted). To prevail on a claim of
ineffective assistance of counsel, Hamilton must show both that counsel’s
performance was deficient and that the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687. Under AEDPA, “[t]he pivotal question is
whether the state court’s application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). Federal
habeas relief is not warranted if “fairminded jurists could disagree” on the
reasonableness of the state court decision. Id. (citation omitted).
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Regarding the statement by the victim’s mother, the post-conviction court’s
determination that there was no Strickland prejudice from counsel’s failure to
object was not so unreasonable that no fairminded jurist could agree with it. Id. at
102. The post-conviction court reasonably determined that the testimony in
question did not impact the outcome of the trial because it related to the Sexual
Abuse charge only, to which Hamilton confessed and which was not contested by
the defense at trial.
In rebuttal, the prosecutor repeatedly asserted that the victim was truthful. A
reasonable jurist could have found that this commentary was impermissible
vouching, that counsel deprived Hamilton of effective assistance by declining to
object to the prosecutor’s improper commentary, and that such deficient
performance prejudiced the defense. However, a reasonable jurist could have
found that the prosecutor’s statements during rebuttal were permissible argument
based on inference from the record, and that failure to object was thus not deficient
performance under Strickland. See United States v. Necoechea, 986 F.2d 1273(9th Cir. 1993). As we are bound by AEDPA’s “doubly deferential” standard of
review, Hamilton is not entitled to relief.
The denial of the petition is AFFIRMED.
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