Lamonte Sims v. Christian Pfeiffer ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMONTE DESHAWN SIMS, No. 17-55028
Petitioner-Appellant, D.C. No. 2:15-cv-09454-JCG
v.
MEMORANDUM*
CHRISTIAN PFEIFFER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Jay C. Gandhi, Magistrate Judge, Presiding**
Submitted January 15, 2019***
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
California state prisoner LaMonte DeShawn Sims appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We
have jurisdiction under 28 U.S.C. § 2253. We review the denial of a habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before Magistrate Judge Gandhi
under 28 U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition de novo, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), and we
affirm.
The sole issue certified on appeal is whether Sims’s appellate counsel
rendered ineffective assistance by failing to challenge on Confrontation Clause
grounds the trial court’s admission of statements made by the victim to police. The
victim’s statements—including that Sims was her boyfriend, he had not assaulted
her, and she did not want police to take him away—were admitted through
testimony elicited by defense counsel for the limited purpose of establishing the
victim’s state of mind to dispute the state’s kidnapping theory. Sims was acquitted
on the kidnapping charge. The California Supreme Court’s determination that
Sims failed to establish deficient performance or prejudice resulting from appellate
counsel’s decision not to raise a Confrontation Clause challenge to the testimony
elicited by trial counsel was not contrary to, nor an unreasonable application of, the
Strickland v. Washington, 466 U.S. 668 (1984), standard. See 28 U.S.C. §
2254(d)(1); Jones v. Barnes, 463 U.S. 745, 753 (1983).
To the extent Sims briefed issues beyond the certificate of appealability
(“COA”), we treat his briefing as a request to expand the COA and deny it. See
9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).
AFFIRMED.
2 17-55028