Corbett Le Grand v. James Yates

FILED
NOT FOR PUBLICATION NOV 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORBETT Le GRAND, No. 12-16085
Petitioner - Appellant, D.C. No. 4:09-cv-00370-SBA
v.
MEMORANDUM*
JAMES A. YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted August 14, 2014
San Francisco, California
Before: TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.
Petitioner Corbett Le Grand (“Le Grand”) was convicted in California state
court of one count of sexual penetration of a minor and one count of lewd and
lascivious acts involving a child under 14. In this proceeding under 28 U.S.C. §
2254, Le Grand challenges his conviction based on ineffective assistance of trial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
counsel under Strickland v. Washington, 466 U.S. 668 (1984). The district court
denied Le Grand’s petition. Reviewing the district court’s denial of the petition de
novo and its factual findings for clear error, Brown v. Ornoski, 503 F.3d 1006,
1010 (9th Cir. 2007), we affirm.
1. Le Grand first contends that his trial counsel was ineffective for
failing to discover his alibi for the nights the offenses occurred. The offenses for
which Le Grand was convicted occurred sometime during the night of March 13 or
14, 2003, while Le Grand was on an overnight camping trip with the victim and
another man. At trial, Le Grand’s counsel presented as an alibi witness Le Grand’s
father, who testified that Le Grand was living with him during the relevant time
period and was always home by 9 p.m., so that he could not have been camping
with the victim on the night the offenses occurred. After trial, Le Grand came
forward with a different alibi, asserting that he was living with his then-girlfriend
during the relevant time period and was with her when the offenses were alleged to
have occurred. He asserts that his trial counsel was ineffective for failing to
discover and present this alibi at trial.
This question is beyond the scope of the Certificate of Appealability
(“COA”) issued by this Court; therefore, it is unreviewable. See 28 U.S.C. §
2253(c)(1) & (3). Even if we were to expand the COA, we would not find Le
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Grand’s claim to be meritorious. There is no evidence suggesting that Le Grand’s
attorney was aware, or had any reason to be aware, at any time before trial that Le
Grand was purportedly with his then-girlfriend on the night the offenses were
alleged to have occurred. Le Grand’s attorney cannot be faulted for failing to
discover an alibi about which his client never told him. See cf. Luna v. Cambra,
306 F.3d 954, 961-62 (9th Cir. 2002), mandate recalled and reissued as amended
by Luna v. Cambra, 311 F.3d 928 (9th Cir. 2002); Lord v. Wood, 184 F.3d 1083,
1096 (9th Cir. 1999).
Although the state court denied Le Grand’s state habeas petition without
explanation, Le Grand’s burden on federal habeas review remains the same. See
Harrington v Richter, 131 S. Ct. 770, 784 (2011). Therefore, applying the doubly
deferential standard of Strickland and the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), see Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011),
we conclude “that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” Harrington v. Richter, 131 S. Ct. 770, 787
(2011) (quoting Strickland, 466 U.S. at 689).
2. Le Grand also contends that his attorney rendered ineffective
assistance of counsel when he brought a motion for a new trial based on an alibi for
the wrong night: The offenses were alleged to have occurred on March 13 or 14,
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2003, but Le Grand’s attorney submitted evidence in his motion for a new trial
accounting for Le Grand’s whereabouts on March 15, 2003. We need not decide
whether this amounted to deficient performance under Strickland because, even
assuming that it did, no prejudice resulted. See Wharton v. Chappell, 765 F.3d
953, 975 (9th Cir. 2014) (stating that where no prejudice is shown, the “court need
not reach the performance prong”). Le Grand’s alibi evidence would not have
been grounds for a new trial because that evidence was not newly discovered.
Based on the foregoing, the judgment of the district court is AFFIRMED.
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