Cesar Aguirre v. Marcus Dawal

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2024
• Docket: 21-16106
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CÉSAR AGUIRRE, No. 21-16106

Petitioner-Appellant, D.C. No. 3:16-cv-06933-RS

v. MEMORANDUM* MARCUS DAWAL, Alameda County Probation Department Chief,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Argued and Submitted May 14, 2024 San Francisco, California

Before: CALLAHAN and SANCHEZ, Circuit Judges, and KRONSTADT,** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John A. Kronstadt, Senior United States District Judge for the Central District of California, sitting by designation. César Aguirre, who was convicted of one felony count of vandalism, appeals

the denial of his federal petition for writ of habeas corpus under 28 U.S.C. § 2254.

We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

We review the district court’s denial of a habeas petition de novo. See Avena

v. Chappell, 932 F.3d 1237, 1247 (9th Cir. 2019). Under the Antiterrorism and

Effective Death Penalty Act (AEDPA), a federal court may grant habeas relief only

if the state court’s last reasoned decision: (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States”; or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

1. Aguirre argues that the California Court of Appeal unreasonably rejected

his claim that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by

failing to disclose body camera videos, dispatch logs, and supplemental police

reports from the Occupy Oakland protests. Because the Court of Appeal summarily

denied Aguirre’s habeas petition on the merits as to all claims, we “‘look through’

the unexplained decision to the last related state-court decision that does provide a

relevant rationale,” presuming that it “adopted the same reasoning.” Wilson v.

Sellers, 584 U.S. 122, 125 (2018); see also Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991) (“Where there has been one reasoned state judgment rejecting a federal

2 claim, later unexplained orders . . . rejecting the same claim rest upon the same

ground.”). As directed by the Court of Appeal as part of its review of Aguirre’s

habeas petition, the Alameda County Superior Court conducted a four-day

evidentiary hearing on the Brady claim and subsequently rejected it, thereby

issuing the last reasoned decision as to that claim. The Court of Appeal then

summarily denied Aguirre’s Brady claim.

Whether the prosecution’s failure to disclose evidence constitutes a Brady

violation turns on whether the evidence at issue “could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.”

Kyles v. Whitley, 514 U.S. 419, 435 (1995). Materiality is “considered collectively,

not item by item.” Id. at 436.

Considering the evidence as a whole, the Superior Court determined that the

evidence supported, rather than undermined, confidence in the verdict. This

conclusion was neither contrary to, nor an unreasonable application of federal law,

and it did not rest on an unreasonable determination of the facts. The body camera

videos revealed another witness, Officer Martin Ziebarth, who corroborated the

trial testimony of the prosecution’s chief witness, Officer Anthony Tedesco.

Although the supplemental police reports stated that other officers observed

several people near the vandalized building, no officer stated that someone other

than Aguirre broke the windows at issue. Nor did the dispatch logs undermine

3 Officer Tedesco’s account because he did not outline a precise timeline in his trial

testimony. Moreover, Aguirre’s trial counsel was aware of the logs and decided not

to request them. For these reasons, Aguirre’s Brady claim was appropriately

rejected.

2. Aguirre also argues that the state court unreasonably denied his

ineffective assistance of counsel claim because his trial counsel failed to seek the

body camera videos, dispatch logs, and supplemental police reports in discovery.

Although the state court’s summary denial of Aguirre’s ineffective assistance of

counsel claim was “unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

To demonstrate ineffective assistance of counsel, a petitioner must show:

(1) counsel’s performance was constitutionally deficient; and (2) this “performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

There is a “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. at 689. Because a state court’s

assessment of counsel’s performance is reviewed “through the lens of AEDPA, our

review is ‘doubly deferential.’” Lopez v. Allen, 47 F.4th 1040, 1050 (9th Cir. 2022)

(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

4 The state court’s denial of Aguirre’s ineffective assistance of counsel claim

was not unreasonable. During the Superior Court’s hearing on the Brady claim,

trial counsel testified that his decision not to seek additional discovery was tactical.

To avoid a political defense of the Occupy Oakland movement, trial counsel

decided to focus on the credibility of the prosecution’s chief witness by cross-

examining Officer Tedesco about visibility and his identification of Aguirre among

the hundreds of protestors at the scene. To be sure, trial counsel could have

requested additional discovery without advancing a political defense. However, the

relevant inquiry “is not whether counsel’s actions were reasonable,” but “whether

there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Richter, 562 U.S. at 105.

Notwithstanding any potential criticism of this trial strategy, as explained

above, the state court could reasonably have concluded that the undisclosed

evidence was not material under Brady. This same evidence forms the basis of

Aguirre’s ineffective assistance of counsel claim. Because “Brady materiality and

Strickland prejudice are the same,” Gentry v. Sinclair, 705 F.3d 884, 906 (9th Cir.

2013), it was also reasonable for the state court to conclude that Aguirre was not

prejudiced by his counsel’s failure to request these materials in discovery.

Aguirre’s ineffective assistance of counsel claim was properly rejected.

AFFIRMED.