Philip Sands v. Greg Lewis

FILED
NOT FOR PUBLICATION FEB 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP LEO SANDS, No. 11-18026
Petitioner - Appellant, D.C. No. 4:10-cv-05315-CW
v.
MEMORANDUM*
GREG LEWIS, Warden, Acting Warden;
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted February 14, 2013
San Francisco, California
Before: SCHROEDER, NOONAN, and MURGUIA, Circuit Judges.
A California jury convicted Philip Leo Sands of stabbing Robin Clarke and,
two years later, murdering Robert Ramirez—a witness to the stabbing. Sands’s
conviction was affirmed on direct appeal in the California state courts, and then in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
state post-conviction review. Pursuant to 28 U.S.C. § 2254, Sands petitioned the
district court for a writ of habeas corpus. The district court denied Sands’s
petition; Sands appeals. We have jurisdiction, 28 U.S.C. § 2253(a), affirm the
district court’s judgment as to the two issues it certified for appeal, and decline to
address a third, uncertified issue that Sands raises.
First, Sands contends that his entire trial was tainted by snide and
disparaging remarks the prosecutor made about defense counsel during her rebuttal
to the defense’s closing. See Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(holding that a defendant may be denied due process if a prosecutor’s remarks
infect the trial with unfairness). While we disapprove of the prosecutor’s conduct,
we do not believe it imbued the entire trial with unfairness, and in any event,
Sands’s counsel failed to register a timely objection to the offensive remarks.
Sands’s claim of prosecutorial misconduct is therefore procedurally defaulted
under California’s contemporaneous objection rule. Fairbank v. Ayres, 650 F.3d
1243, 1256–57 (9th Cir. 2011).
Sands asks us to excuse the default, arguing that his counsel provided
ineffective assistance by failing to object to the prosecutor’s alleged misconduct
contemporaneously. The bar for proving ineffective assistance of counsel is high,
clearing it “is never an easy task,” Padilla v. Kentucky, 130 S. Ct. 1473, 1485
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(2010), and Sands fails to do so here. To demonstrate that his counsel assisted him
ineffectively by failing to object during the prosecution’s rebuttal, Sands must
overcome “a strong presumption that . . . the challenged action might be considered
sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal
quotation marks and citation omitted). We have observed previously, however,
that “many trial lawyers refrain from objecting during closing argument to all but
the most egregious misstatements by opposing counsel on the theory that the jury
may construe their objections to be a sign of desperation or hyper-technicality.”
United States v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991).
Sands offers his trial counsel’s sworn declaration that the failure to object
contemporaneously to the prosecutor’s barbs was carelessness, not strategy. But
we must evaluate counsel’s performance objectively, Harrington v. Richter, 131 S.
Ct. 770, 790 (2011), and in conducting an objective inquiry, counsel’s post-hoc
declaration of his subjective intent is of little value. Moreover, even if we credit
counsel’s declaration and assume that he behaved deficiently by failing to register
a timely objection, given the evidence against Sands—including wiretap evidence
tending to inculpate him in Ramirez’s murder—there is no “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
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Lastly, Sands asks us to consider the uncertified question whether the
aforementioned wiretap evidence was obtained in violation of federal law. We do
not have jurisdiction over this claim because Sands does not assert the violation of
a constitutionally protected right; he asserts only that the wiretap evidence was
obtained in violation of a federal statute. See 28 U.S.C. § 2253(c)(2) (“A
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”); see, e.g., United States
v. Mikels, 236 F.3d 550, 551 (9th Cir. 2001) (finding a lack of jurisdiction over the
appeal of a denial of relief under 28 U.S.C. § 2255 when the defendant raised
statutory, but no constitutional, claims). Accordingly, we cannot, and do not,
entertain Sands’s uncertified question.
AFFIRMED.
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