Joel Sempier v. Renee Baker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2021
• Docket: 20-17249
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOEL ROSS SEMPIER, No. 20-17249

Petitioner-Appellant, D.C. No. 3:18-cv-00465-RCJ-WGC v.

RENEE BAKER, et. al. MEMORANDUM*

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding

Submitted December 10, 2021** San Francisco, California

Before: MURGUIA, Chief Judge, and IKUTA and VANDYKE, Circuit Judges.

Nevada state prisoner Joel Ross Sempier appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for sexual

assault. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

We review the district court’s denial of Mr. Sempier’s § 2254 petition de

* 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). 1 novo. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), overruled on other

grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). A district court may not grant

a § 2254 petition unless the state court’s 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 of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

Mr. Sempier claims that trial counsel rendered ineffective assistance under

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Sempier has

the burden of showing that trial counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Id. at 687. The deficiency prong

“requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

To prove prejudice, Mr. Sempier must show that there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. Because the Strickland standard requires a “highly

deferential” assessment of counsel’s performance, and the Nevada Supreme Court’s

decision is entitled to deference under 28 U.S.C. § 2254(d), this Court’s review is

“doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations

omitted).

2 First, Mr. Sempier has not shown that trial counsel rendered deficient

performance by failing to adequately impeach, investigate, or rebut the sexual

assault nurse’s testimony, nor by failing to object to the prosecution’s purported

mischaracterization of that testimony in its closing argument. Trial counsel’s

effective cross-examination established that the nurse’s evidence lacked probative

value. Mr. Sempier has not demonstrated that further investigation would have been

helpful, see Djerf v. Ryan, 931 F.3d 870, 881–82 (9th Cir. 2019) (finding no

deficiency where petitioner has not shown additional, helpful evidence was

available), nor that a rebuttal witness was necessary, where “cross-examination

[was] sufficient to expose defects in [the] expert’s presentation,” see Harrington v.

Richter, 562 U.S. 86, 111 (2011). Mr. Sempier likewise has not demonstrated that

the prosecution’s comment during closing arguments was a misstatement—because

he has not shown there was any significant difference between examinees and

victims—nor that trial counsel was deficient for choosing to emphasize that the

nurse’s evidence was not probative rather than objecting to the comment. See Ayala

v. Chappell, 829 F.3d 1081, 1115 (9th Cir. 2016) (noting counsel was not deficient

for failing to object to ambiguous statement).

Second, Mr. Sempier has not established that trial counsel rendered

ineffective assistance for failure to impeach the victim on various issues, including

her recollection of the assault, her conduct after the assault, and her prior interactions

3 with Mr. Sempier. Trial counsel did impeach the victim during cross-examination

on many of the inconsistencies Mr. Sempier identified, and additional impeachment

evidence “would have been largely cumulative,” see Doe v. Ayers, 782 F.3d 425,

431 (9th Cir. 2015). Mr. Sempier therefore has not shown trial counsel rendered

deficient performance. Id.

As for Strickland’s prejudice prong, Mr. Sempier cannot demonstrate a

reasonable likelihood of a different trial outcome “for failure to present [evidence

that was] most likely cumulative” of the nurse and victim’s testimony on cross-

examination. See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009). Nor

was Mr. Sempier prejudiced by trial counsel’s failure to object to the prosecution’s

brief comments during closing arguments because the judge explained to the jury

that closing arguments are not evidence. See Cunningham v. Wong, 704 F.3d 1143,

1159 (9th Cir. 2013).

The Nevada Supreme Court did not unreasonably apply the Strickland

standard in denying these claims. See also Harrington, 562 U.S. at 109 (holding

state court’s conclusion that trial counsel did not render ineffective assistance for

failure to investigate blood evidence or present expert testimony was not

unreasonable application of Strickland); Yarborough v. Gentry, 540 U.S. 1, 6–7

(2003) (holding state court’s conclusion that trial counsel was not constitutionally

ineffective despite counsel’s failure to employ all possible impeachment tactics was

4 not unreasonable application of Strickland); Ayala, 829 F.3d at 1115 (finding state

court’s determination that trial counsel did not render ineffective assistance for

failure to object to misstatement in closing argument was not unreasonable

application of Strickland).

To the extent Mr. Sempier raises uncertified claims in his briefs, we construe

his arguments as a motion to expand the certificate of appealability. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).

Because Mr. Sempier has not shown “reasonable jurists would find the district

court’s assessment of [his uncertified ineffective assistance] claims debatable or

wrong,” we deny the motion. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Mr. Sempier’s petition is therefore DENIED.