NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DARREN GABRIEL LACHANCE, No. 21-16694
Petitioner-Appellee, D.C. No. 3:17-cv-00689-MMD-WGC v.
JAMES DZURENDA; et al., MEMORANDUM *
Respondents-Appellants.
Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted May 12, 2023 San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT,** District Judge. Concurrence by Judge FRIEDLAND.
A Nevada jury convicted Darren LaChance of various offenses, including as
relevant here, domestic battery by strangulation and domestic battery causing
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. substantial bodily harm. See Nev. Rev. Stat. §§ 33.018, 200.481, 200.485.1 After
unsuccessful state postconviction proceedings, LaChance filed a federal habeas
petition subject to the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
The district court granted conditional relief on one ineffective assistance of counsel
(“IAC”) claim: counsel’s failure to request a jury instruction on misdemeanor
domestic battery as a lesser included offense of domestic battery by strangulation.
The district court denied all remaining claims and declined to issue a certificate of
appealability (“COA”) as to any of those claims. The State of Nevada appeals
from the district court’s order granting in part LaChance’s habeas petition.
LaChance requests a COA on two denied claims.2 We have jurisdiction under 28
U.S.C. § 2253, and we reverse the grant of relief on the IAC claim and decline to
issue a COA.
1. We review de novo a district court’s grant of habeas relief. Dickinson
v. Shinn, 2 F.4th 851, 857 (9th Cir. 2021). As a threshold issue, the district court
1 All references to the Nevada Revised Statutes refer to the version in effect in 2012 when LaChance committed the offenses. 2 Although a motions panel previously denied LaChance’s request for a COA, we have the power to revisit that decision. See Phelps v. Alameda, 366 F.3d 722, 727 (9th Cir. 2004) (“[A merits panel has] the power to expand the scope of a COA to include additional issues, even if they previously had been deemed inappropriate for review.”); id. at 728 n.6 (explaining that the law of the case doctrine does not preclude a merits panel from reviewing the issuance of a COA, as it is a jurisdictional issue).
2 determined that, under Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015), the Nevada
Court of Appeals unreasonably applied Strickland v. Washington, 466 U.S. 668
(1984), when it concluded that the IAC claim failed for lack of prejudice. Thus,
the district court declined to afford AEDPA deference to the Nevada Court of
Appeals’s lack-of-prejudice determination and reviewed the IAC claim de novo.3
See 28 U.S.C. § 2254(d)(1).
In Crace, the state court had concluded that there was no Strickland
prejudice based on counsel’s failure to request a lesser included offense
instruction. 798 F.3d at 846. In reaching that conclusion, the state court first
presumed that the jury must have found each of the elements of the offense proved
beyond a reasonable doubt, and then determined that, because the evidence was
“sufficient” to support the jury’s verdict, the lesser included offense instruction
would have made no difference. Id. at 847. We held that the state court’s
methodology was an unreasonable application of Strickland because it improperly
“converted Strickland’s prejudice inquiry into a sufficiency-of-the-evidence
question.” Id. at 849.
Here, unlike in Crace, the Nevada Court of Appeals did not find that the
evidence supporting the greater offense was merely sufficient. Instead, in denying
the IAC claim, it relied on Crace and found that there was “substantial evidence to
3 The Nevada Court of Appeals did not reach Strickland’s performance prong.
3 support” the jury’s verdict. (emphasis added). That said, we need not decide
whether the Nevada Court of Appeals unreasonably applied Strickland under
Crace because, as discussed below, the IAC claim fails even under de novo
review. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
To establish Strickland prejudice, LaChance must show that there is a
reasonable probability that, had the lesser included offense instruction been given,
the “jury would have convicted only on the lesser included offense.” Crace, 798
F.3d at 849. “The likelihood of [that] result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
The evidence supporting the strangulation element 4 of the greater offense—
the only difference between the greater and lesser offense—was strong. The
victim, Starleen Lane, testified that LaChance viciously assaulted her for hours.
She was “[c]rying, screaming,” and begging him to stop. LaChance, while
continually telling Lane he was going to “f***ing kill [her],” put his hand on “the
lower part of [her] neck,” impeding her breathing and almost causing her to pass
out. LaChance was also hitting her with a flashlight and punching her
“[e]verywhere” with his fists. The jury credited Lane’s testimony as to the assault,
4 To prove strangulation the prosecution had to prove that LaChance “intentionally imped[ed] the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person in a manner that create[d] a risk of death or substantial bodily harm.” Nev. Rev. Stat. § 200.481(1)(h).
4 which was supported by overwhelming evidence. A witness testified that Lane,
who was being chased by LaChance, was “screaming for her life” and that when
LaChance caught up to her, he hit her with “extremely forceful” blows. An officer,
who arrived at the scene shortly after the attack, testified that he saw bruises and
marks on Lane’s body that were consistent with Lane’s version of what happened,
and that Lane told him that LaChance’s hand was “around her throat” and that he
“had cut her airway off causing her to almost pass out.” Photos of Lane’s injuries
and her medical records also corroborated her testimony. Because the evidence
supporting the strangulation element was strong, and because the evidence
corroborating Lane’s testimony was overwhelming, there is no substantial
likelihood that the jury would have convicted LaChance on only the lesser
included offense—misdemeanor domestic battery.
LaChance’s counterarguments are weak. Lane’s medical records and the
photographs of her injuries did not directly contradict her testimony. Additionally,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DARREN GABRIEL LACHANCE, No. 21-16694
Petitioner-Appellee, D.C. No. 3:17-cv-00689-MMD-WGC v.
JAMES DZURENDA; et al., MEMORANDUM *
Respondents-Appellants.
Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted May 12, 2023 San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT,** District Judge. Concurrence by Judge FRIEDLAND.
A Nevada jury convicted Darren LaChance of various offenses, including as
relevant here, domestic battery by strangulation and domestic battery causing
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. substantial bodily harm. See Nev. Rev. Stat. §§ 33.018, 200.481, 200.485.1 After
unsuccessful state postconviction proceedings, LaChance filed a federal habeas
petition subject to the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
The district court granted conditional relief on one ineffective assistance of counsel
(“IAC”) claim: counsel’s failure to request a jury instruction on misdemeanor
domestic battery as a lesser included offense of domestic battery by strangulation.
The district court denied all remaining claims and declined to issue a certificate of
appealability (“COA”) as to any of those claims. The State of Nevada appeals
from the district court’s order granting in part LaChance’s habeas petition.
LaChance requests a COA on two denied claims.2 We have jurisdiction under 28
U.S.C. § 2253, and we reverse the grant of relief on the IAC claim and decline to
issue a COA.
1. We review de novo a district court’s grant of habeas relief. Dickinson
v. Shinn, 2 F.4th 851, 857 (9th Cir. 2021). As a threshold issue, the district court
1 All references to the Nevada Revised Statutes refer to the version in effect in 2012 when LaChance committed the offenses. 2 Although a motions panel previously denied LaChance’s request for a COA, we have the power to revisit that decision. See Phelps v. Alameda, 366 F.3d 722, 727 (9th Cir. 2004) (“[A merits panel has] the power to expand the scope of a COA to include additional issues, even if they previously had been deemed inappropriate for review.”); id. at 728 n.6 (explaining that the law of the case doctrine does not preclude a merits panel from reviewing the issuance of a COA, as it is a jurisdictional issue).
2 determined that, under Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015), the Nevada
Court of Appeals unreasonably applied Strickland v. Washington, 466 U.S. 668
(1984), when it concluded that the IAC claim failed for lack of prejudice. Thus,
the district court declined to afford AEDPA deference to the Nevada Court of
Appeals’s lack-of-prejudice determination and reviewed the IAC claim de novo.3
See 28 U.S.C. § 2254(d)(1).
In Crace, the state court had concluded that there was no Strickland
prejudice based on counsel’s failure to request a lesser included offense
instruction. 798 F.3d at 846. In reaching that conclusion, the state court first
presumed that the jury must have found each of the elements of the offense proved
beyond a reasonable doubt, and then determined that, because the evidence was
“sufficient” to support the jury’s verdict, the lesser included offense instruction
would have made no difference. Id. at 847. We held that the state court’s
methodology was an unreasonable application of Strickland because it improperly
“converted Strickland’s prejudice inquiry into a sufficiency-of-the-evidence
question.” Id. at 849.
Here, unlike in Crace, the Nevada Court of Appeals did not find that the
evidence supporting the greater offense was merely sufficient. Instead, in denying
the IAC claim, it relied on Crace and found that there was “substantial evidence to
3 The Nevada Court of Appeals did not reach Strickland’s performance prong.
3 support” the jury’s verdict. (emphasis added). That said, we need not decide
whether the Nevada Court of Appeals unreasonably applied Strickland under
Crace because, as discussed below, the IAC claim fails even under de novo
review. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
To establish Strickland prejudice, LaChance must show that there is a
reasonable probability that, had the lesser included offense instruction been given,
the “jury would have convicted only on the lesser included offense.” Crace, 798
F.3d at 849. “The likelihood of [that] result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
The evidence supporting the strangulation element 4 of the greater offense—
the only difference between the greater and lesser offense—was strong. The
victim, Starleen Lane, testified that LaChance viciously assaulted her for hours.
She was “[c]rying, screaming,” and begging him to stop. LaChance, while
continually telling Lane he was going to “f***ing kill [her],” put his hand on “the
lower part of [her] neck,” impeding her breathing and almost causing her to pass
out. LaChance was also hitting her with a flashlight and punching her
“[e]verywhere” with his fists. The jury credited Lane’s testimony as to the assault,
4 To prove strangulation the prosecution had to prove that LaChance “intentionally imped[ed] the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person in a manner that create[d] a risk of death or substantial bodily harm.” Nev. Rev. Stat. § 200.481(1)(h).
4 which was supported by overwhelming evidence. A witness testified that Lane,
who was being chased by LaChance, was “screaming for her life” and that when
LaChance caught up to her, he hit her with “extremely forceful” blows. An officer,
who arrived at the scene shortly after the attack, testified that he saw bruises and
marks on Lane’s body that were consistent with Lane’s version of what happened,
and that Lane told him that LaChance’s hand was “around her throat” and that he
“had cut her airway off causing her to almost pass out.” Photos of Lane’s injuries
and her medical records also corroborated her testimony. Because the evidence
supporting the strangulation element was strong, and because the evidence
corroborating Lane’s testimony was overwhelming, there is no substantial
likelihood that the jury would have convicted LaChance on only the lesser
included offense—misdemeanor domestic battery.
LaChance’s counterarguments are weak. Lane’s medical records and the
photographs of her injuries did not directly contradict her testimony. Additionally,
Lane’s testimony that LaChance’s hand was on her collarbones did not necessarily
undermine her testimony that his hand was on her lower neck. Given the
proximity between the collarbones and lower neck, the jury could have easily
inferred that LaChance’s hand extended to both Lane’s collarbones and lower
neck, especially given the size difference between LaChance, who is 6’1”, and
5 Lane, who is 5’4”. Finally, LaChance’s argument that the jury may have
discounted the officer’s testimony is speculative.
Because LaChance fails to show Strickland prejudice, his IAC claim fails,
and we need not address the district court’s determination that counsel’s failure to
request the lesser included offense instruction was deficient. See Strickland, 466
U.S. at 697. We reverse the district court’s grant of relief on the IAC claim based
on counsel’s failure to request a jury instruction on misdemeanor domestic battery
as a lesser included offense of domestic battery by strangulation.
2. LaChance requests a COA on two IAC claims that the district court
rejected: counsel was ineffective by (a) failing to request a jury instruction on
misdemeanor domestic battery as a lesser included offense of domestic battery
causing substantial bodily harm, and (b) failing to investigate and present at trial
Lane’s Facebook messages. “[T]he showing required to satisfy [28 U.S.C.]
§ 2253(c) [for a COA] is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
As to the first claim, the district court reviewed it de novo5 and determined
that there was no Strickland prejudice because the evidence supporting the
5 Again, we assume without deciding that de novo review applies because it does not affect the outcome. See Berghuis, 560 U.S. at 390.
6 substantial bodily harm element6—the only difference between domestic battery
causing substantial bodily harm and the lesser offense of misdemeanor domestic
battery—was so overwhelming that there was no reasonable probability that the
jury would have convicted LaChance on only the lesser offense. No reasonable
jurist would debate that conclusion given the overwhelming evidence that Lane
experienced some physical suffering or injury that lasted longer than the pain
immediately resulting from the attack.
As to the second claim, the Nevada Court of Appeals denied it based on lack
of Strickland prejudice. That determination was neither contrary to nor based on
an unreasonable application of Supreme Court precedent, see 28 U.S.C.
§ 2254(d)(1), as a reasonable jurist could conclude that the Facebook messages
were consistent with Lane’s testimony, and thus there was no reasonable
probability that their admission at trial would have changed the outcome, see
Strickland, 466 U.S. at 694; Davis v. Ayala, 576 U.S. 257, 269–70 (2015).
LaChance also fails to show that the Nevada Court of Appeals’s decision was
based on an unreasonable factual determination. See 28 U.S.C. § 2254(d)(2).
Thus, the district court correctly determined that LaChance failed to overcome
6 The jury was instructed that “substantial bodily harm” means “[p]rolonged physical pain,” and “prolonged physical pain” means “some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act.” LaChance has not challenged these instructions.
7 AEDPA deference on the IAC claim related to the Facebook messages, and
reasonable jurists would not debate that determination.
REVERSED.
8 FILED MAY 24 2023 LaChance v. Dzurenda, No. 21-16694 FRIEDLAND, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I join this disposition except as to the discussion comparing the Nevada
Court of Appeals decision here to the state court decision reviewed in Crace v.
Herzog, 798 F.3d 840 (9th Cir. 2015). I do not think we need to reach—or hint
about—whether the Nevada Court of Appeals decision here comports with Crace
and Strickland v. Washington, 466 U.S. 668 (1984), given that we are holding that
the ineffective assistance of counsel claim fails even under de novo review.