Mary Wheeler v. Tina Hornbeck , 539 F. App'x 819 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY ASHLEY WHEELER, No. 11-55733
Petitioner - Appellant, D.C. No. 5:09-cv-01034-JST-OP
v.
MEMORANDUM*
TINA HORNBECK, Warden; JERRY
BROWN, The Attorney General of the
State of California,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Submitted August 29, 2013**
Pasadena, California
Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.
Petitioner Mary Ashley Wheeler appeals the district court’s denial of her
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. She
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argues that the California state court unreasonably applied clearly established
federal law by denying her habeas petition. Her petition is based on an ineffective
assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984).
The state court reasonably applied Strickland in concluding that the
performance of Wheeler’s counsel was not deficient. Wheeler has produced no
evidence to overcome the presumption that her counsel adequately considered
alternative defense strategies before opting for the one used at trial. See Matylinsky
v. Budge, 577 F.3d 1083, 1091–92 (2009). Among other reasons, that is why
Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), is distinguishable. Moreover,
“[a]n attorney need not pursue an investigation that would be fruitless, much less
one that might be harmful to the defense.” Harrington v. Richter, 131 S. Ct. 770,
789–90 (2011). Applying the “doubly” deferential standard for Strickland claims
under AEDPA review, id. at 788, it was not unreasonable for the state court to
conclude that any further investigation by counsel would have been fruitless.
As for prejudice, “[T]he question is not . . . whether it is possible a
reasonable doubt might have been established if counsel acted differently.” Id. at
791. Rather, “Strickland asks whether it is ‘reasonably likely’ the result would
have been different.” Id. at 792. “The likelihood of a different result must be
substantial, not just conceivable.” Id. Wheeler points to Dr. Glenn Larkin’s post-
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conviction declaration as an example of the type of evidence that could have
resulted from further investigation into the cause of Bill Wheeler’s death, although
Dr. Larkin’s declaration did not include a determination as to the proximate cause
of death. The state court could reasonably have concluded that any evidence that
would have resulted from further investigation would not have impeached Dr.
Mark Fajardo and does not meet the very high bar for prejudice under AEDPA.
Because she has not made a “substantial showing of the denial of a
constitutional right,” we see no reason to expand the Certificate of Appealability to
address Wheeler’s uncertified claims. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
AFFIRMED.
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