Everett Gholston v. Ron Barnes

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2018
• Docket: 16-55428
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EVERETT LEE GHOLSTON, No. 16-55428

Petitioner-Appellant, D.C. No. 5:13-cv-00283-DDP-JC

v. MEMORANDUM* RON BARNES, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Submitted August 6, 2018** Pasadena, California

Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.

Everett Lee Gholston, a California state prisoner, challenges the denial of his

28 U.S.C. § 2254 habeas petition. Reviewing the denial of his petition de novo,

Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Gholston first contends that his trial counsel rendered ineffective assistance

by failing to object to the exclusion of a witness statement on due process grounds

and failing to call two witnesses to testify that they did not see Gholston with a gun

during one of the shootings giving rise to his underlying conviction.

Gholston’s petition is subject to the Antiterrorism and Effective Death Penalty

Act of 1996; therefore, our review of this ineffective assistance claim is “doubly

deferential.” See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The excluded

statement and omitted testimony on which Gholston relies were not fully

exculpatory and, for the most part, simply indicated the witnesses did not see

Gholston with a gun because they were running away from the shooting. The

California Court of Appeal’s determination that Gholston failed to establish

prejudice due to the equivocal nature of this evidence compared to the weight of

evidence at trial was not an unreasonable application of the Strickland v.

Washington, 466 U.S. 668 (1984), standard. See Harrington v. Richter, 562 U.S.

86, 102 (2011).

Gholston also contends that the California Court of Appeal’s rejection of his

challenge under Batson v. Kentucky, 476 U.S. 79 (1986), was based on an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). The California

Court of Appeal undertook a comparative juror analysis and evaluated the totality of

the circumstances when considering Gholston’s contention that the State

2 16-55428 impermissibly exercised peremptory challenges to strike prospective jurors E.H. and

P.B. on the basis of their race. Although reasonable minds certainly could doubt the

veracity of the prosecutor’s explanations for the challenges at issue, we cannot say

that, on this record, the state court “had no permissible alternative but to reject the

prosecutor’s race-neutral justifications and conclude [Gholston] had shown a Batson

violation.” See Rice v. Collins, 546 U.S. 333, 341 (2006).

AFFIRMED.

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