Skoor v. Tilton

FILED
NOT FOR PUBLICATION MAY 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL LOREN SKOOR, No. 08-55261
Petitioner - Appellant, D.C. No. CV-06-01601-IEG
v.
MEMORANDUM *
JAMES E. TILTON, Acting Secretary,
California Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted April 6, 2010 **
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
Michael Skoor, a California state prisoner, appeals the district court’s denial
of his 28 U.S.C. § 2254 petition alleging ineffective assistance of counsel. We
have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
*
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).
Skoor contends he received ineffective assistance of counsel because his
trial attorney failed to secure discovery to support a claim of prosecutorial
discrimination and failed to independently obtain public information of the same
nature that could have been presented as mitigating evidence at sentencing. The
state appellate court rejected those contentions.
We may not grant relief unless the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). The
right to effective assistance of counsel in criminal proceedings is clearly
established. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984). To
prevail on such a claim, a petitioner must show that counsel’s performance was
both deficient and prejudicial. Id. at 687.
The state court’s decision was not contrary to or an unreasonable application
of Strickland. Skoor’s trial counsel adequately argued the discovery motion and,
accordingly, the representation was not deficient. Skoor was not prejudiced by his
counsel’s failure to cite United States v. Armstrong, 517 U.S. 456 (1996), because
the trial judge independently identified and applied Armstrong. Counsel’s failure
to cite additional cases in support of the request for discovery was not prejudicial
because those cases were not analogous to Skoor’s and did not establish a prima
-2-
facie claim of prosecutorial discrimination. For that same reason, trial counsel’s
failure to cite those cases at Skoor’s sentencing was not prejudicial and did not
constitute ineffective assistance of counsel. See Strickland, 494 U.S. at 694.
AFFIRMED.
-3-