Anthony Bravo v. Randy Grounds , 580 F. App'x 542 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY BRAVO, No. 11-55557
Petitioner - Appellant, D.C. No. 2:10-cv-02687-PSG-E
v.
MEMORANDUM*
RANDY GROUNDS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted June 5, 2014
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND, Chief District
Judge.**
The district court properly denied California state prisoner Anthony Bravo’s
petition for a writ of habeas corpus, which is based on an ineffective assistance of
counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
I.
“When more than one state court has adjudicated a claim, we analyze the last
reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). An
exception to this rule arises when “the last reasoned decision adopted or
substantially incorporated the reasoning from a previous decision.” Id. at 1093.
That exception does not apply here where the California Court of Appeal did not
discuss or reference the opinion of the Superior Court.
II.
The Court of Appeal’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). By omitting the
language regarding a “reasonable probability,” the Court of Appeal impermissibly
held Petitioner to a heightened standard on the prejudice prong of the Strickland
inquiry. See 466 U.S. at 694.
III.
The Court of Appeal’s reliance on an improper standard as to the prejudice
prong of Petitioner’s ineffective assistance argument requires that this panel review
his claim de novo. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1243 (9th Cir.
2005). However, even under a de novo standard of review, Petitioner failed to
establish either prejudice or deficient performance under Strickland. Any failure
by defense counsel to investigate the potential witness or to present evidence of the
facts included in her declaration was harmless in light of the overwhelming
evidence of Petitioner’s guilt. This evidence includes Petitioner’s refusal to
comply with police orders over an extended period of time, the discovery of
firearms and ammunition in a locked safe located near where Petitioner had been
standing, the presence of men’s clothing in Petitioner’s size in the bedroom, and
bills and registration documents in Petitioner’s name in the bedroom. Moreover,
defense witness Jonathan Ortiz was less than credible—as Petitioner himself
acknowledges.
As to Strickland’s deficient performance prong, “the defendant must
overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Petitioner offers no evidence to suggest that
counsel’s decisions were not “based on professional judgment,” id. at 681, and
Petitioner therefore fails to meet his “heavy burden,” Murtishaw v. Woodford, 255
F.3d 926, 939 (9th Cir. 2001).
AFFIRMED.