Kirk Williams v. Mark Nooth

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KIRK L. WILLIAMS, No. 13-35343
Petitioner - Appellant, D.C. No. 3:10-cv-00070-ST
v.
MEMORANDUM*
MARK NOOTH,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted October 7, 2014
Portland, Oregon
Before: KOZINSKI, FERNANDEZ and FISHER, Circuit Judges.
1. The district court properly dismissed petitioner’s ineffective assistance of
counsel claim as procedurally defaulted. Petitioner can’t overcome the procedural
default based on Martinez v. Ryan, 132 S. Ct. 1309 (2012), because he didn’t
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
receive ineffective assistance during post-conviction proceedings, see Woods v.
Sinclair, 764 F.3d 1109, 1137 (9th Cir. 2014).
Post-conviction counsel was ineffective only if it “amounted to
incompetence” not to argue that direct-appeal counsel was ineffective for failing to
pursue a Southard-type claim. Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
In evaluating the strength of that argument, reasonable post-conviction counsel
would have known that the Oregon Supreme Court hadn’t even granted review in
Southard when direct-appeal counsel filed his brief, and that we “do[] not mandate
prescience, only objectively reasonable advice under prevailing professional
norms.” Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004); see also
Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). Accordingly, reasonable post-
conviction counsel could have viewed an attack on direct-appeal counsel’s
effectiveness as a “weaker issue[]” with “little or no likelihood of success.” Miller
v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
2. The district court also properly dismissed as procedurally defaulted
petitioner’s claim regarding the sufficiency of the indictment, because petitioner
failed to “fairly present his federal claim” to the Oregon Supreme Court. Peterson
v. Lampert, 319 F.3d 1153, 1154 (9th Cir. 2003) (en banc). Petitioner “raised both
page 3
the state and federal issues in his briefing before the court of appeals, but then
omitted the federal issue before the Oregon Supreme Court.” Id. at 1159. As such,
“there is reason to conclude that such omission [was] a strategic choice by counsel
not to present the federal issue in hopes of convincing the Oregon Supreme Court
. . . to grant review.” Id.
3. Petitioner’s claim that the state court admitted prejudicial evidence can’t
provide a basis for habeas relief because “[the Supreme Court] has not yet made a
clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes
a due process violation sufficient to warrant issuance of the writ.” Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). The state court’s admission of
the allegedly prejudicial evidence therefore didn’t result in a decision that 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)(1).
AFFIRMED.