NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GARRETT KAZUO IGE, No. 19-56209
Petitioner-Appellant, D.C. No. 5:18-cv-01237-PA-LAL v.
ROSEMARY NDOH, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Submitted December 5, 2023** Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges. Concurrence by Judge VANDYKE.
Petitioner-Appellant Garrett Ige (“Garrett”) appeals an order of the United
States District Court for the Central District of California which denied his petition
for federal habeas corpus relief. Garrett argues he was rendered ineffective
* 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).
COA assistance of trial counsel because his trial attorney failed to investigate and present
exculpatory third-party evidence, viz., Garrett’s brother, Kenden Ige’s (“Kenden”),
confession (shortly before his suicide) that he alone committed the murders for
which Garrett was convicted and sentenced to life in prison without the possibility
of parole. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We
review de novo the district court’s denial of Garrett’s petition for a writ of habeas
corpus. Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021). We affirm.1
Because Garrett’s habeas petition was filed after April 24, 1996, it is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA’s “highly deferential standard,” Lindh v. Murphy, 521 U.S. 320, 334 n.7
(1997), this Court “must defer to a state court’s decision on any claim that was
adjudicated on the merits unless the decision was: (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States’; or (2) ‘based on an unreasonable determination
1 Garrett filed a motion which asks us to take judicial notice of the California Supreme Court’s informal briefing order (Docket Entry No. 43). We may take judicial notice on appeal. See Fed. R. Evid. 201(f). We may take judicial notice of documents “not subject to reasonable dispute,” Fed. R. Evid. 201(b), and “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)). We grant the motion.
COA 2 of the facts in light of the evidence presented in the State court proceeding,’”
Demetrulias, 14 F.4th at 905 (quoting 28 U.S.C. § 2254(d)).
We conclude that Garrett’s ineffective assistance of counsel claim was
adjudicated on the merits by the California Supreme Court, which adjudication is
therefore due deference under AEDPA.
Generally, “[w]here there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting the same
claim [are presumed to] rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991). But “the State may rebut the presumption by showing that [an]
unexplained affirmance relied or most likely did rely on different grounds than the
lower state court’s decision, such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the record it reviewed.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Here, the San Bernardino County Superior Court applied a state procedural
rule to deny Garrett’s petition, and both the California Court of Appeal and the
California Supreme Court summarily denied Garrett’s petition. However, before it
issued its summary denial, the California Supreme Court requested and received
informal briefing “on the merits” of Garrett’s ineffective assistance of counsel claim.
Therefore, “alternative grounds for affirmance [] were briefed” to the California
Supreme Court, id., and we are convinced this briefing rebuts the presumption that
COA 3 the state supreme court’s summary denial of Garrett’s petition rested upon the same
ground as that relied upon by the lower court, see Trigueros v. Adams, 658 F.3d 983,
990 (9th Cir. 2011) (holding presumption rebutted by California Supreme Court’s
request and receipt of informal merits briefing). This straightforward application of
our holding in Trigueros in no way upsets our decision in Flemming v. Matteson,
where we declined to extend Trigueros to a situation where (1) the relevant ruling
was by the California Court of Appeal, not the California Supreme Court, and (2)
general “opposition to the petition” (which did not specify any particular issues in
which the state appellate court was interested) was requested and received, not
informal merits briefing. 26 F.4th 1136, 1141–42 (9th Cir. 2022). Neither
distinction this Court drew in Flemming applies here.
We further conclude that Garrett’s ineffective assistance of counsel claim
does not overcome AEDPA’s highly deferential standard. “Ineffective assistance of
counsel claims are evaluated according to the familiar standard set forth in Strickland
[v. Washington, 466 U.S. 668 (1984)].” Mann v. Ryan, 828 F.3d 1143, 1152 (9th
Cir. 2016) (en banc). Under this standard, “[f]irst, the defendant must show that
counsel’s performance was deficient.” Strickland, 466 U.S. at 687. To demonstrate
deficient performance, “the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 687–88. “Second, the
defendant must show that the deficient performance prejudiced the defense.” Id. at
COA 4 687. To demonstrate prejudice, the defendant “must show that there is a reasonable
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GARRETT KAZUO IGE, No. 19-56209
Petitioner-Appellant, D.C. No. 5:18-cv-01237-PA-LAL v.
ROSEMARY NDOH, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Submitted December 5, 2023** Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges. Concurrence by Judge VANDYKE.
Petitioner-Appellant Garrett Ige (“Garrett”) appeals an order of the United
States District Court for the Central District of California which denied his petition
for federal habeas corpus relief. Garrett argues he was rendered ineffective
* 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).
COA assistance of trial counsel because his trial attorney failed to investigate and present
exculpatory third-party evidence, viz., Garrett’s brother, Kenden Ige’s (“Kenden”),
confession (shortly before his suicide) that he alone committed the murders for
which Garrett was convicted and sentenced to life in prison without the possibility
of parole. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We
review de novo the district court’s denial of Garrett’s petition for a writ of habeas
corpus. Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021). We affirm.1
Because Garrett’s habeas petition was filed after April 24, 1996, it is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA’s “highly deferential standard,” Lindh v. Murphy, 521 U.S. 320, 334 n.7
(1997), this Court “must defer to a state court’s decision on any claim that was
adjudicated on the merits unless the decision was: (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States’; or (2) ‘based on an unreasonable determination
1 Garrett filed a motion which asks us to take judicial notice of the California Supreme Court’s informal briefing order (Docket Entry No. 43). We may take judicial notice on appeal. See Fed. R. Evid. 201(f). We may take judicial notice of documents “not subject to reasonable dispute,” Fed. R. Evid. 201(b), and “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)). We grant the motion.
COA 2 of the facts in light of the evidence presented in the State court proceeding,’”
Demetrulias, 14 F.4th at 905 (quoting 28 U.S.C. § 2254(d)).
We conclude that Garrett’s ineffective assistance of counsel claim was
adjudicated on the merits by the California Supreme Court, which adjudication is
therefore due deference under AEDPA.
Generally, “[w]here there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting the same
claim [are presumed to] rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991). But “the State may rebut the presumption by showing that [an]
unexplained affirmance relied or most likely did rely on different grounds than the
lower state court’s decision, such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the record it reviewed.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Here, the San Bernardino County Superior Court applied a state procedural
rule to deny Garrett’s petition, and both the California Court of Appeal and the
California Supreme Court summarily denied Garrett’s petition. However, before it
issued its summary denial, the California Supreme Court requested and received
informal briefing “on the merits” of Garrett’s ineffective assistance of counsel claim.
Therefore, “alternative grounds for affirmance [] were briefed” to the California
Supreme Court, id., and we are convinced this briefing rebuts the presumption that
COA 3 the state supreme court’s summary denial of Garrett’s petition rested upon the same
ground as that relied upon by the lower court, see Trigueros v. Adams, 658 F.3d 983,
990 (9th Cir. 2011) (holding presumption rebutted by California Supreme Court’s
request and receipt of informal merits briefing). This straightforward application of
our holding in Trigueros in no way upsets our decision in Flemming v. Matteson,
where we declined to extend Trigueros to a situation where (1) the relevant ruling
was by the California Court of Appeal, not the California Supreme Court, and (2)
general “opposition to the petition” (which did not specify any particular issues in
which the state appellate court was interested) was requested and received, not
informal merits briefing. 26 F.4th 1136, 1141–42 (9th Cir. 2022). Neither
distinction this Court drew in Flemming applies here.
We further conclude that Garrett’s ineffective assistance of counsel claim
does not overcome AEDPA’s highly deferential standard. “Ineffective assistance of
counsel claims are evaluated according to the familiar standard set forth in Strickland
[v. Washington, 466 U.S. 668 (1984)].” Mann v. Ryan, 828 F.3d 1143, 1152 (9th
Cir. 2016) (en banc). Under this standard, “[f]irst, the defendant must show that
counsel’s performance was deficient.” Strickland, 466 U.S. at 687. To demonstrate
deficient performance, “the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 687–88. “Second, the
defendant must show that the deficient performance prejudiced the defense.” Id. at
COA 4 687. To demonstrate prejudice, the defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. Judicial review of ineffective
assistance claims under 28 U.S.C. § 2254(d) is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). That is, “[w]hen §2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
There is a reasonable argument that Garrett’s trial lawyer adequately
investigated and presented his case. The lawyer spoke to Garrett’s prior counsel’s
investigator, who was present at the time Kenden made the confession, and asked
the investigator to reconstruct a report thereabout for the purpose of disclosing the
confession to the prosecution. Moreover, Garrett ignores that the lawyer explained
to him “that he would not seek admission of the confession because it would not
seem credible because [Garrett] and Kenden were siblings.” Reasonable tactical
decisions do not constitute ineffective assistance of counsel, even if, in hindsight,
better tactics were available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.
1984) (citing United States v. Stern, 519 F.2d 521, 524–25 (9th Cir. 1975), cert.
denied, 423 U.S. 1033 (1975)).
COA 5 It is also reasonably unlikely that the outcome of Garrett’s case would have
differed had the confession been presented to the jury, given the confession’s
presentation would have created a conflict within the defense: whereas Garrett and
his co-defendant, Lawrence Hughes II, testified that their friend, Jeff Katayama—a
prosecution witness—was present at the scene of the crime, Kenden’s confession
suggested that Katayama was not present at all. Further, the evidence that Garrett
participated in the murders was compelling, and the credibility of Kenden’s
confession was weak, such that a reasonable jurist could conclude that Kenden
plausibly had a motive to lie, in his confession, in order to exonerate his brother,
Garrett.
Because Garrett is not entitled to habeas relief, he is not entitled to an
evidentiary hearing. See Sully v. Avers, 725 F.3d 1057, 1075–76 (9th Cir. 2013).
AFFIRMED.
COA 6 Garrett Ige v. Rosemary Ndoh, No. 19-56209 FILED VanDyke, Circuit Judge, concurring in the result: DEC 8 2023 I concur in the result. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS