NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KELLY ALICE KESSLER, No. 16-15987
Petitioner-Appellant, D.C. No. CR-10-00322 LJO-SKO
v.
DEBORAH K. JOHNSON and JEFFREY A. BEARD, MEMORANDUM* Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 9, 2018 San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Petitioner Kelly Alice Kessler appeals the District Court’s denial of her
petition for a writ of habeas corpus brought under the 1996 Antiterrorism and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 1 Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. We have jurisdiction
pursuant to 28 U.S.C. § 2253. We affirm.
Petitioner’s sole claim in this appeal is that she was denied effective assistance
of counsel under the Sixth Amendment to the United States Constitution because her
trial counsel failed to investigate her prior Nevada burglary conviction to determine
whether it constituted a strike under the California Three Strikes Law, Cal. Penal
Code § 667(b)-(i), and because upon that counsel’s advice, she admitted that
conviction as a strike rather than try it before a jury. We review de novo a district
court’s decision to deny habeas relief. Bemore v. Chappell, 788 F.3d 1151, 1160
(9th Cir. 2015).
Under AEDPA, the Court considers “the last state court merits decision,” id.,
and relief may only be granted if those proceedings “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court . . . ; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” § 2254(d). Here, the “last state court merits
decision” is the August 20, 2010 opinion of the California Court of Appeal.
AEDPA provides a “highly deferential standard for evaluating state-court
rulings” which “demands that state-court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted). Relief
2 under AEDPA requires that the “unreasonable application” of clearly established
federal law be “objectively unreasonable, not merely wrong[.]” Rowland v.
Chappell, 876 F.3d 1174, 1181 (9th Cir. 2017) (quoting White v. Woodall, 134 S.Ct.
1697, 1702 (2014)). Habeas relief may be granted only where the petitioner has
shown that the last state court merits decision is “so lacking in justification that there
was an error . . . beyond any possibility for fairminded disagreement.” Id. (quoting
Woodall, 134 S.Ct. at 1702).
The “clearly established federal law” applied to an ineffective assistance of
counsel (“IAC”) claim is Strickland v. Washington, 466 U.S. 668 (1984) and its
progeny. In order to prevail on an IAC claim, the plaintiff must show both that
counsel was deficient and that the plaintiff was prejudiced as a result of that
deficiency. Rowland, 876 F.3d at 1183 (citing Strickland, 466 U.S. at 687–88).
AEDPA and Strickland each provide a “highly deferential” standard of
review, “and when the two apply in tandem, review is ‘doubly’ so.” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 105 (2011)). “When [AEDPA] 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.” Richter, 562 U.S. at 105. Put another way, under AEDPA, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable.” Rowland, 876 F.3d at 1183 (quoting Richter, 562 U.S. at 101).
3 1. Deficiency under Strickland requires showing that “counsel’s
representation fell below an objective standard of reasonableness.” Id. (quoting
Strickland, 466 U.S. at 688). Petitioner has not demonstrated that there is no
“reasonable argument that counsel satisfied Strickland’s deferential standard”
regarding deficiency. Richter, 562 U.S. at 105.
The California Court of Appeal reasonably found that Petitioner failed to
provide a detailed declaration recounting what she told trial counsel regarding the
prior Nevada conviction, and what he told her. Petitioner is not helped by trial
counsel’s February 28, 2003 statement to trial prosecution that he was unaware of,
and unable to stipulate to, the equivalency of the prior Nevada burglary to a
California first degree burglary. That exchange does not speak to the sufficiency of
trial counsel’s investigation of the prior Nevada burglary conviction. Nor does it
show that counsel was wholly ignorant of an operative difference between the
Nevada burglary statute and its California analog, namely, that the former lacked
degrees and would not constitute a strike under the California Three Strikes Law.
Both inferences are speculative.
Counsel had access to known evidence from the prior Nevada burglary case
supporting a finding of habitation. An amended criminal complaint from that case
identifies the specific location burglarized and notes that it was a “Residence.”
Petitioner told police she was in the victim’s house, and a judicial probable cause
4 finding incorporated that statement. The trial prosecutor said that he disclosed the
documentation in the record to trial counsel “before and prior to” Petitioner’s waiver
of trial. The Superior Court and the Court of Appeal found those documents
admissible.
Trial transcript excerpts demonstrate that counsel’s advice to admit the prior
conviction as a strike rather than try it was guided by tactical considerations, and
that he consulted with Petitioner as to the direct legal effect of the admission.
Petitioner thus does not overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance,” nor the premise
that the challenged action “might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (citation omitted).
In sum, the question of trial counsel’s deficiency poses, at the very least, a
“possibility for fairminded disagreement.” Rowland, 876 F.3d at 1181 (quoting
Woodall, 134 S.Ct. at 1702). The California Court of Appeal’s denial of Petitioner’s
IAC claim was reasonable.1
1 In asserting trial counsel’s “general pattern of professional misconduct,” and its relevance to counsel’s “state of mind at the time he was representing Petitioner,” Petitioner points to counsel’s State Bar file, disciplinary proceedings, and subsequent disbarment.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KELLY ALICE KESSLER, No. 16-15987
Petitioner-Appellant, D.C. No. CR-10-00322 LJO-SKO
v.
DEBORAH K. JOHNSON and JEFFREY A. BEARD, MEMORANDUM* Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 9, 2018 San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Petitioner Kelly Alice Kessler appeals the District Court’s denial of her
petition for a writ of habeas corpus brought under the 1996 Antiterrorism and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 1 Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. We have jurisdiction
pursuant to 28 U.S.C. § 2253. We affirm.
Petitioner’s sole claim in this appeal is that she was denied effective assistance
of counsel under the Sixth Amendment to the United States Constitution because her
trial counsel failed to investigate her prior Nevada burglary conviction to determine
whether it constituted a strike under the California Three Strikes Law, Cal. Penal
Code § 667(b)-(i), and because upon that counsel’s advice, she admitted that
conviction as a strike rather than try it before a jury. We review de novo a district
court’s decision to deny habeas relief. Bemore v. Chappell, 788 F.3d 1151, 1160
(9th Cir. 2015).
Under AEDPA, the Court considers “the last state court merits decision,” id.,
and relief may only be granted if those proceedings “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court . . . ; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” § 2254(d). Here, the “last state court merits
decision” is the August 20, 2010 opinion of the California Court of Appeal.
AEDPA provides a “highly deferential standard for evaluating state-court
rulings” which “demands that state-court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted). Relief
2 under AEDPA requires that the “unreasonable application” of clearly established
federal law be “objectively unreasonable, not merely wrong[.]” Rowland v.
Chappell, 876 F.3d 1174, 1181 (9th Cir. 2017) (quoting White v. Woodall, 134 S.Ct.
1697, 1702 (2014)). Habeas relief may be granted only where the petitioner has
shown that the last state court merits decision is “so lacking in justification that there
was an error . . . beyond any possibility for fairminded disagreement.” Id. (quoting
Woodall, 134 S.Ct. at 1702).
The “clearly established federal law” applied to an ineffective assistance of
counsel (“IAC”) claim is Strickland v. Washington, 466 U.S. 668 (1984) and its
progeny. In order to prevail on an IAC claim, the plaintiff must show both that
counsel was deficient and that the plaintiff was prejudiced as a result of that
deficiency. Rowland, 876 F.3d at 1183 (citing Strickland, 466 U.S. at 687–88).
AEDPA and Strickland each provide a “highly deferential” standard of
review, “and when the two apply in tandem, review is ‘doubly’ so.” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 105 (2011)). “When [AEDPA] 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.” Richter, 562 U.S. at 105. Put another way, under AEDPA, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable.” Rowland, 876 F.3d at 1183 (quoting Richter, 562 U.S. at 101).
3 1. Deficiency under Strickland requires showing that “counsel’s
representation fell below an objective standard of reasonableness.” Id. (quoting
Strickland, 466 U.S. at 688). Petitioner has not demonstrated that there is no
“reasonable argument that counsel satisfied Strickland’s deferential standard”
regarding deficiency. Richter, 562 U.S. at 105.
The California Court of Appeal reasonably found that Petitioner failed to
provide a detailed declaration recounting what she told trial counsel regarding the
prior Nevada conviction, and what he told her. Petitioner is not helped by trial
counsel’s February 28, 2003 statement to trial prosecution that he was unaware of,
and unable to stipulate to, the equivalency of the prior Nevada burglary to a
California first degree burglary. That exchange does not speak to the sufficiency of
trial counsel’s investigation of the prior Nevada burglary conviction. Nor does it
show that counsel was wholly ignorant of an operative difference between the
Nevada burglary statute and its California analog, namely, that the former lacked
degrees and would not constitute a strike under the California Three Strikes Law.
Both inferences are speculative.
Counsel had access to known evidence from the prior Nevada burglary case
supporting a finding of habitation. An amended criminal complaint from that case
identifies the specific location burglarized and notes that it was a “Residence.”
Petitioner told police she was in the victim’s house, and a judicial probable cause
4 finding incorporated that statement. The trial prosecutor said that he disclosed the
documentation in the record to trial counsel “before and prior to” Petitioner’s waiver
of trial. The Superior Court and the Court of Appeal found those documents
admissible.
Trial transcript excerpts demonstrate that counsel’s advice to admit the prior
conviction as a strike rather than try it was guided by tactical considerations, and
that he consulted with Petitioner as to the direct legal effect of the admission.
Petitioner thus does not overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance,” nor the premise
that the challenged action “might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (citation omitted).
In sum, the question of trial counsel’s deficiency poses, at the very least, a
“possibility for fairminded disagreement.” Rowland, 876 F.3d at 1181 (quoting
Woodall, 134 S.Ct. at 1702). The California Court of Appeal’s denial of Petitioner’s
IAC claim was reasonable.1
1 In asserting trial counsel’s “general pattern of professional misconduct,” and its relevance to counsel’s “state of mind at the time he was representing Petitioner,” Petitioner points to counsel’s State Bar file, disciplinary proceedings, and subsequent disbarment. However, Petitioner has not shown that counsel committed any actual errors or omissions in her case. “[T]here is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984). Representation by a lawyer previously suspended from practice by a state bar does not automatically result in the denial of the Sixth 5 2. Because Petitioner has failed to demonstrate deficient performance, this
Court need not reach the question of prejudice. Strickland, 466 U.S. at 697.
Regardless, Petitioner’s prejudice arguments fail. We review those arguments de
novo because the Court of Appeal did not analyze potential prejudice. Crace v.
Herzog, 798 F.3d 840, 852 (9th Cir. 2015).
Demonstrating prejudice under the second prong of Strickland requires
showing “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Richter, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 694). Petitioner does not furnish cognizable
evidence demonstrating a reasonable probability that her sentencing would have
been different had she gone to trial on the prior conviction rather than admit it for
tactical reasons. Petitioner failed at all stages to provide a detailed declaration
recounting her conversations with trial counsel regarding the prior Nevada
conviction. Arguments as to the likelihood of Petitioner’s success in trying the prior
conviction are speculative. Moreover, under California law, “in determining the
Amendment right to counsel. United States v. Mouzin, 785 F.2d 682, 696 (9th Cir. 1986); see also Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir. 2006). “A defendant must show actual errors and omissions by counsel that a conscientious advocate would not have made, and which prejudiced him.” Mouzin, 785 F.2d at 696 (citation omitted). None of Petitioner’s citations to trial counsel’s file demonstrate a connection between the conduct for which he was disciplined and his representation of her.
6 truth of a prior-conviction allegation, the trier of fact may look to the entire record
of the conviction.” People v. Guerrero, 748 P.2d 1150, 1157 (Cal. 1988). When the
California Superior Court reviewed the record of the prior Nevada conviction on
habeas remand, it concluded that Petitioner burglarized an inhabited dwelling, a
serious felony for the purposes of the California Three Strikes Law.
For the foregoing reasons, the district court properly denied the petition for a
writ of habeas corpus.
AFFIRMED.