Glenford Ennis v. Dwight Neven

FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENFORD EDWARD ENNIS, No. 09-16762
Petitioner - Appellant, D.C. No. 2:06-cv-01271-KJD-PAL
v.
MEMORANDUM*
DWIGHT NEVEN and GEORGE
CHANOS,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted February 18, 2011**
San Francisco, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON, District
Judge.***
*
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).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Petitioner Glenford Ennis appeals from the U.S. District Court for the
District of Nevada’s dismissal of his habeas petition challenging his state
conviction for second degree murder with use of a deadly weapon, attempted
murder, and coercion.1 On the issue certified for appeal, Ennis claims that his trial
counsel was ineffective because he (1) failed to object to inadmissible hearsay, (2)
failed to investigate and call his supervisor as a witness regarding his history of
work absence and domestic disputes, and (3) failed to object to comments made by
the prosecutor during closing argument.2 We affirm in all respects.
This petition is reviewed under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which provides that the court may grant habeas
relief only if: the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court;” or (2) “was based on an unreasonable determination of the facts
in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). The district
1
The parties are familiar with the facts of this case and we repeat them
here only as necessary.
2
Although Ennis contends that all eight of the grounds he raised in his
habeas petition are subject to review by this court, the district court certified only
his claim of ineffective assistance of counsel regarding these three issues.
2
court’s denial of a habeas petition is reviewed de novo. Carter v. Scribner, No. 09-
17869, 2011 WL 219525 *1 (9th Cir. Jan. 24, 2011).
Claims for ineffective assistance of counsel are evaluated under the standard
set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 691-94
(1984). Under Strickland, for counsel’s assistance to be deemed ineffective the
petitioner must prove that the counsel’s representation was deficient, or fell below
an objective standard of reasonableness, and that the “deficient performance
prejudiced the defense.” Id. at 687. This is a highly deferential standard and there
is a strong presumption that counsel performed reasonably. Id. at 689.
First, Ennis contends that he was prejudiced by his counsel’s ineffective
assistance because his counsel failed to object to two instances of inadmissible
hearsay. He first challenges the victim’s aunt’s testimony that while she was
talking to her mother on the phone the mother told her “to call the police because
she said Glen [Ennis] was there jumping on [Michelle].” The second statement
that Ennis challenges is Michelle’s grandmother’s testimony that on the day of the
murder Michelle called to her from a different room in the house, saying “Mama
Glen [Ennis] is in here.”
The Nevada Supreme Court found that counsel had not been ineffective.
Counsel had objected to the first statement, but the trial court had allowed it after
3
the prosecution satisfied the court’s foundational concern. The state court found
that the second statement was admissible as an excited utterance. The Nevada
Supreme Court further found that the alleged failures were not prejudicial to Ennis
because their only effect was to place him at the crime scene, which Ennis had
done himself by admitting to killing the victim.
We find that the Nevada Supreme Court properly applied the Strickland
standard, see 466 U.S. at 691-94, and that its determinations of fact are not
unreasonable. 28 U.S.C. § 2254(d)(2).
Second, Ennis contends that his counsel was ineffective by not calling his
supervisor as a witness to talk about his history of work absences and domestic
disputes. “Trial counsel’s duty to investigate . . . ‘does not necessarily require that
every conceivable witness be interviewed.’” Crittenden v. Ayers, 624 F.3d 943,
967 (9th Cir. 2010) (quoting Hendricks v. Calderon, 70 F.3d 1032, 1040 (1995)).
Ennis has not specified what information the supervisor could have provided to
refute any of the charges against him. Furthermore, Ennis testified at trial, so he
could have addressed both his domestic disputes as well as his history of work
absences. On this record, Ennis has failed to show any prejudice from his
counsel’s failure to call his supervisor. Under the deferential standards of review
4
articulated in AEDPA and Strickland, we are compelled to affirm the lower court’s
denial of this claim. 28 U.S.C. § 2254(d)(1); Strickland, 466 U.S. at 691-94.
Third, Ennis contends that his counsel was ineffective by failing to object to
two comments made by the prosecutor during closing argument. First, he contends
that the prosecutor’s comment that “the fact that [the officer] did not believe [the
victim] . . . does not make that allegation false,” was improper vouching. A
prosecutor can comment on a witness’s credibility as long as it does not amount to
personal vouching. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.
1993) (vouching is improper when counsel gives the jury personal assurances that
the witness is credible). An improper statement made at closing argument,
however, constitutes prosecutorial misconduct warranting reversal if the court
concludes that “any reasonable jurist could find that [the statements] had [a]
substantial and injurious effect or influence in determining the jury’s verdict.”
Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Here, the comment was
not a personal assurance of the victim’s credibility, and thus, does not amount to
personal vouching. Necoechea, 986 F.2d at 1276. Because the statement was not
improper, Ennis’s counsel did not fall below an objective standard of
reasonableness by not objecting to the statement. Strickland, 466 U.S. at 688.
5
Ennis also challenges the prosecutor’s comments concerning Ennis’s
thought process during his attack on Michelle on February 18, 2001. The record
reflects that the prosecutor’s comments were a fair supposition based on the
evidence of Ennis’s actions and statements. Furthermore, Ennis’s counsel did
object to the prosecutor’s comments and was overruled. Accordingly, Ennis’s
counsel was not deficient in performing his duties. Id.Because Ennis has failed to show any individual act of ineffective assistance
of counsel, we reject Ennis’s contention that there was cumulative error.
We decline to certify the uncertified issues because Ennis’s contentions lack
sufficient merit to warrant review. Valerio v. Crawford, 306 F.3d 742, 767 (9th
Cir. 2002) (citing 28 U.S.C. § 2253(c)(2)) (we may grant a petitioner’s request for
an expanded certificate of appealability when the petitioner has made “a substantial
showing of the denial of a constitutional right”).
The district court’s denial of Ennis’s petition is AFFIRMED.
6