Kem Cote v. Darryl Adams ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEM COTE, No. 12-55844
Petitioner - Appellant, D.C. No. 5:07-cv-00486-DDP-
RNB
v.
DARRYL ADAMS, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 18, 2014
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Petitioner Kem Cote appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition, challenging his California convictions for child sexual
abuse. He makes two principal arguments in this appeal.
The first is that his appellate counsel was ineffective for failing to argue that
a mid-trial amendment of the information violated his due process right to notice of
the charges and the penalty he faced. While he argues that the state court’s
determination is not entitled to deference under the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), the reasoned opinion of the state trial
court, affirmed by the California Supreme Court, is entitled to deference. See
Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). The state ineffective
assistance of counsel claim did not materially differ from the federal claim, and the
state court’s reasoned disposition rejected the state claim. See Johnson v.
Williams, 133 S. Ct. 1088, 1094–99 (2013) (applying deference to a federal claim
not expressly mentioned in the state court decision, where state and federal claims
were not “quite different”). Cote has not overcome the presumption that the
federal claim was also adjudicated on the merits.
As to the merits, the state court did not unreasonably apply the principles of
Strickland v. Washington, 466 U.S. 668 (1984), when it found that Cote did not
suffer from ineffective assistance of counsel. Cote contends appellate counsel’s
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failure to raise a due process argument based on the mid-trial amendment of the
information was deficient, but he cannot establish prejudice under any standard of
review. The effect of the amendment was to narrow the time period covered by the
charges. The amendment did not change the maximum sentencing exposure, or
charge matters not covered in the original information. Moreover, Cote has never
indicated how additional notice would have affected the manner in which his case
was presented. See Gautt v. Lewis, 489 F.3d 993, 1003–04 (9th Cir. 2007) (noting
an information is constitutionally sufficient if it states “the elements of the offense
charged with sufficient clarity to apprise a defendant of what he must be prepared
to defend against”).
Cote’s second contention is that the state courts unreasonably determined
that a juror’s statements during deliberations did not constitute prejudicial
misconduct. The state courts found that the juror’s comment, concerning how her
experience as a court reporter bore on interpreting one of the instructions was not
misconduct, and was not prejudicial in any event. These findings were not
objectively unreasonable. See Wood v. Allen, 558 U.S. 290, 301–02 (2010) (noting
a state court finding must be unreasonable, not merely debatable, to warrant habeas
relief).
AFFIRMED.
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