Mark Pray v. Craig Farwell

NOT FOR PUBLICATION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
MARK RONALD PRAY, No. 14-15698
Petitioner - Appellant, D.C. No. 3:03-cv-00608-JCM-
VPC
v.
CRAIG FARWELL and NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted May 14, 2015
San Francisco, California
Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and COLLINS,** Chief
District Judge.
Petitioner/Appellant, Mark Ronald Pray, a Nevada state prisoner serving two
consecutive life sentences for first degree murder, appeals from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
denial of his application for a writ of habeas corpus. The bizarre facts underlying
Pray’s conviction are fully recounted by the Nevada Supreme Court in Pray v.
State, 959 P.2d 530, 531 (Nev. 1998). The district court certified one issue for
appeal; Plaintiff appealed on the certified issue and two other uncertified issues.
As to the uncertified issues, we find that Pray fails to establish that
reasonable jurists could debate whether the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further as required by Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
As to the certified issue—whether Pray’s constitutional right to effective
counsel was violated where trial counsel failed to deliver on his promise to the jury
that Pray would testify—we affirm the district court’s decision.
STANDARD OF REVIEW
We review de novo a district court’s denial of a petition for writ of habeas
corpus. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). Generally, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, applies to all habeas petitions filed after April 24, 1996.
Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a state prisoner may
not obtain federal habeas relief for any claim that was adjudicated on the merits by
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a state court unless the state court’s decision was 1) “contrary to” clearly
established federal law as determined by the Supreme Court, 2) “involved an
unreasonable application of” such clearly established law, or 3) “was based on an
unreasonable determination of the facts” in light of the record before the state
court. 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 99 (2011). “A
state court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Id. at 101.
For any habeas claims not adjudicated on the merits by the state court,
federal courts review the claim de novo without the deference usually accorded to
state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221
(9th Cir. 2005). Additionally, there is no special standard of review for ineffective
assistance of counsel claims in habeas proceedings because the writ’s central
concern is fundamental fairness. Strickland v. Washington, 466 U.S. 668, 697-98
(1984); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (reviewing Strickland
prejudice de novo because the state court decision did not reach the question
presented).
In this case, the Nevada Supreme Court only addressed whether trial counsel
was ineffective for failing to call Pray as a witness. While noting that “trial counsel
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did state that Pray would testify during opening statements,” the Nevada Supreme
Court found that Pray “failed to demonstrate that his counsel was deficient by
advising Pray not to take the stand in his own defense.” The district court agreed
that the Nevada Supreme Court “did not address the crux of Pray’s claim—i.e., that
counsel created an expectation for the jury that he subsequently failed to meet.” As
such, we review this claim de novo.
TRIAL COUNSEL’S DECISION NOT TO CALL PRAY WAS STRATEGIC
Pray argues that he received constitutionally ineffective representation
because during jury selection and opening statements in Pray’s trial, trial counsel
made statements to the jury to the effect that Pray would be testifying as to what
transpired on the night of the murder and then failed to deliver on these “promises”
because Pray never took the stand. During closing arguments, trial counsel
explained to the jury that he had made the strategic decision not to call Pray to
testify because he believed that the State had not proved its case. Pray argues that
trial counsel’s failure to deliver on the promises that Pray would testify created a
negative inference with the jury and led to his conviction.
To prevail on a claim that his counsel was constitutionally ineffective, a
petitioner must establish 1) that counsel’s representation “fell below an objective
standard of reasonableness,” and 2) that counsel’s deficient performance
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prejudiced the petitioner such that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 688, 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
To avoid the “distorting effects of hindsight,” we are required to
“reconstruct the circumstances of counsel’s challenged conduct” and “evaluate the
conduct from counsel’s perspective at the time.” Id. at 689. We must also “indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id.
On appeal, Pray bases his argument that trial counsel was ineffective on this
court’s recent holding that “[c]ounsel may render constitutionally ineffective
assistance when counsel breaks a promise to the jury that the defendant will
testify.” Mann v. Ryan, 774 F.3d 1203, 1212 (9th Cir. 2014) (citing United States
ex rel. Hampton v. Leibach, 347 F.3d 219, 258 (7th Cir. 2003) (counsel’s
performance objectively unreasonable where counsel told the jury in his opening
statement that defendant would testify about the circumstances of the alleged
offense, but then declined to call the defendant to the witness stand for reasons that
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were apparent at the time he made his opening statement; sufficient prejudice
where sole evidence against the defendant was other eyewitness testimony, and
defense counsel’s opportunity to contradict and cast doubt on that testimony was
critical to the defense); Ouber v. Guarino, 293 F.3d 19, 22, 30 (1st Cir. 2002)
(defense counsel’s trial performance deficient where counsel failed to put the
defendant on the stand after telling the jury four times in his opening statement that
the defendant would testify; sufficiently prejudicial where inculpatory evidence
was so underwhelming it had resulted in two prior hung juries); McAleese v.
Mazurkiewicz, 1 F.3d 159, 166-167 (3rd Cir. 1993); Harris v. Reed, 894 F.2d 871,
879 (7th Cir. 1990) (finding counsel’s performance deficient and sufficiently
prejudicial where counsel promised the jury evidence that another suspect
committed the crime and then failed to call any defense witnesses without
explanation to the jury as to the change in strategy)). “In those circumstances,
defense counsel made a specific promise to the jury to present important evidence,
such as the defendant’s testimony or other evidence central to the defense.” Id. at
1213. “And in each case, defense counsel made an about-face by declining to
present the promised evidence in the absence of unforeseen circumstances that
would have justified the change in strategy.” Id.
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 In the present case, however, we find that Pray’s counsel’s decision not to
call Pray to testify (even after promising to the jury that Pray would testify) was
strategic and within an objective standard of reasonableness. Pray asserted a
defense of justifiable homicide at trial. During opening statements and jury
selection, Pray’s counsel anticipated that Pray would have to testify to support his
defense. However, during the prosecution’s case-in-chief, the prosecution allowed
many of Pray’s statements made on the night in question to come in through the
testimony of the police officers who investigated the case the case. As a result,
much of what Pray would have testified to in support of his defense was introduced
via the testimony of the investigating officers. Pray’s counsel explained to the jury
in his closing argument that his choice to no longer have Pray testify was strategic.
We agree and find that, in this case, Pray’s trial counsel’s decision to renege on his
promise to the jury that Pray would testify was well within an objective standard of
reasonableness.
AFFIRMED.
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