FILED NOT FOR PUBLICATION NOV 22 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH H. SHOCKMAN, No. 16-55195
Petitioner-Appellant, D.C. No. 3:14-cv-01946-H-JMA v.
TIM PEREZ and XAVIER BECERRA, MEMORANDUM* Attorney General,
Respondents-Appellees.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding
Argued and Submitted October 6, 2017 Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Kenneth Shockman was arrested after he and his co-defendant were caught in
a sting operation attempting to sell methamphetamine. The co-defendant was carrying
the meth, which was wrapped in a black cocktail napkin—a distinctive packaging for
drugs that one of the officers involved had never seen in his experience with over 500
drug cases. Police then found meth, drug paraphernalia, and black cocktail napkins at
Shockman’s home. Shockman rejected a plea offer of 32 months. He chose instead to
go to trial notwithstanding compelling evidence of guilt, a choice that ultimately led
to a sentence of 10 years’ imprisonment.
Seven years before the attempted sale that resulted in the convictions he
challenges here, Shockman had been convicted of possessing meth for sale—a
conviction that Shockman’s counsel managed to exclude from the trial as unduly
prejudicial. The prosecutor nonetheless received a case file for this 2002 conviction
just as Shockman was testifying. The file revealed that Shockman had also wrapped
meth in cocktail napkins during the 2002 offense—surprising both the prosecutor and
Shockman’s counsel, who was aware of the offense but had not investigated the
details.
Solely because of the delayed disclosure, the trial judge again prohibited the
prosecution from using the fact and circumstances of the 2002 conviction, although
he did allow Shockman’s co-defendant to cross-examine Shockman on details
2 underlying the conviction, including the napkin pattern. During this cross-
examination, Shockman denied that his earlier possession had been for sale. The trial
judge then ruled that Shockman had “opened the door” and allowed the prosecution
to elicit further details and the specific fact that Shockman had a prior conviction for
possessing methamphetamine. Shockman was found guilty. After exhausting his state
post-trial remedies, he filed a petition for a writ of habeas corpus. He now appeals the
denial of that petition.
Shockman’s primary argument is that effective counsel would have convinced
him to plead guilty. Unsurprisingly, counsel did recommend that Shockman take the
generous plea offer. But, Shockman claims, had counsel first investigated the 2002
conviction, counsel would have discovered the damning napkin pattern, which would
have swayed Shockman to follow counsel’s advice and plead guilty. Instead,
Shockman chose to go to trial unaware that he would be confronted with the unique
way he himself packaged methamphetamine. This choice, he argues, resulted in a
harsher sentence after trial than Shockman would have received had counsel
uncovered the pattern earlier and thereby convinced Shockman to accept the plea
bargain.
Shockman’s ineffective assistance of counsel claim fails. Our review of
counsel’s performance is doubly deferential. First, the California courts must defer to
3 counsel’s reasonable judgments. Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (per
curiam). Second, we must defer to the California courts’ assessments of counsel’s
judgments unless those assessments are “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); Vega, 757 F.3d at 966.
Here, Shockman’s counsel was not deficient. Of course, the right to effective
assistance of counsel “extends to the plea-bargaining process,” Lafler v. Cooper,
566 U.S. 156, 162 (2012), and it is clear that, in some circumstances, counsel may be
required to review a case file from a prior prosecution regardless of what the client
does or does not say about it, Rompilla v. Beard, 545 U.S. 374, 381–90 (2005);
cf. Vega, 757 F.3d at 968–69 (requiring counsel to review prior attorneys’ case file for
same matter). But the Constitution does not require defense counsel to obtain and
review the details of a client’s seven-year-old drug conviction before plea bargaining
when counsel is already going to advise the client to accept a generous plea offer in
a case with little chance of acquittal and in which counsel plans to move to exclude
evidence of the earlier conviction—a motion that was granted before trial. While
Shockman’s trial counsel himself agreed that he was ineffective, on this record we
disagree. See Edwards v. Lamarque, 475 F.3d 1121, 1126 & n.2 (9th Cir. 2007) (en
banc) (noting this Court’s skepticism of an attorney’s mea culpa).
4 Additionally, even if counsel had been deficient, Shockman would still have to
show that he was prejudiced by that deficiency. That requires “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In
the context of a rejected plea agreement, that means that Shockman must demonstrate,
among other things, a reasonable probability that the prosecution would have offered
a beneficial plea agreement after counsel’s hypothetical investigation into the 2002
conviction. See Lafler, 566 U.S. at 164. But the napkin detail was in police reports in
the prosecution’s offsite file of the 2002 conviction, and it is uncertain that the
specific detail could have been obtained other than by a request to the prosecutor, as
the respondents argue. Thus, earlier discovery by Shockman’s counsel may well have
led to the prosecution learning of the pattern too. And Shockman offers no evidence
that the prosecution, likely armed with what the trial judge called “home run material”
(on top of an already compelling case), would even have offered a plea bargain.
Moreover, Shockman’s proposed remedy, simply vacating his conviction, is
odd medicine when the purported malady is the loss of a chance to plead guilty.
“Conceptually, any habeas remedy ‘should put the defendant back in the position he
would have been in if the Sixth Amendment violation never occurred’….” Nunes v.
Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) (quoting United States v. Blaylock,
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FILED NOT FOR PUBLICATION NOV 22 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH H. SHOCKMAN, No. 16-55195
Petitioner-Appellant, D.C. No. 3:14-cv-01946-H-JMA v.
TIM PEREZ and XAVIER BECERRA, MEMORANDUM* Attorney General,
Respondents-Appellees.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding
Argued and Submitted October 6, 2017 Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Kenneth Shockman was arrested after he and his co-defendant were caught in
a sting operation attempting to sell methamphetamine. The co-defendant was carrying
the meth, which was wrapped in a black cocktail napkin—a distinctive packaging for
drugs that one of the officers involved had never seen in his experience with over 500
drug cases. Police then found meth, drug paraphernalia, and black cocktail napkins at
Shockman’s home. Shockman rejected a plea offer of 32 months. He chose instead to
go to trial notwithstanding compelling evidence of guilt, a choice that ultimately led
to a sentence of 10 years’ imprisonment.
Seven years before the attempted sale that resulted in the convictions he
challenges here, Shockman had been convicted of possessing meth for sale—a
conviction that Shockman’s counsel managed to exclude from the trial as unduly
prejudicial. The prosecutor nonetheless received a case file for this 2002 conviction
just as Shockman was testifying. The file revealed that Shockman had also wrapped
meth in cocktail napkins during the 2002 offense—surprising both the prosecutor and
Shockman’s counsel, who was aware of the offense but had not investigated the
details.
Solely because of the delayed disclosure, the trial judge again prohibited the
prosecution from using the fact and circumstances of the 2002 conviction, although
he did allow Shockman’s co-defendant to cross-examine Shockman on details
2 underlying the conviction, including the napkin pattern. During this cross-
examination, Shockman denied that his earlier possession had been for sale. The trial
judge then ruled that Shockman had “opened the door” and allowed the prosecution
to elicit further details and the specific fact that Shockman had a prior conviction for
possessing methamphetamine. Shockman was found guilty. After exhausting his state
post-trial remedies, he filed a petition for a writ of habeas corpus. He now appeals the
denial of that petition.
Shockman’s primary argument is that effective counsel would have convinced
him to plead guilty. Unsurprisingly, counsel did recommend that Shockman take the
generous plea offer. But, Shockman claims, had counsel first investigated the 2002
conviction, counsel would have discovered the damning napkin pattern, which would
have swayed Shockman to follow counsel’s advice and plead guilty. Instead,
Shockman chose to go to trial unaware that he would be confronted with the unique
way he himself packaged methamphetamine. This choice, he argues, resulted in a
harsher sentence after trial than Shockman would have received had counsel
uncovered the pattern earlier and thereby convinced Shockman to accept the plea
bargain.
Shockman’s ineffective assistance of counsel claim fails. Our review of
counsel’s performance is doubly deferential. First, the California courts must defer to
3 counsel’s reasonable judgments. Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (per
curiam). Second, we must defer to the California courts’ assessments of counsel’s
judgments unless those assessments are “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); Vega, 757 F.3d at 966.
Here, Shockman’s counsel was not deficient. Of course, the right to effective
assistance of counsel “extends to the plea-bargaining process,” Lafler v. Cooper,
566 U.S. 156, 162 (2012), and it is clear that, in some circumstances, counsel may be
required to review a case file from a prior prosecution regardless of what the client
does or does not say about it, Rompilla v. Beard, 545 U.S. 374, 381–90 (2005);
cf. Vega, 757 F.3d at 968–69 (requiring counsel to review prior attorneys’ case file for
same matter). But the Constitution does not require defense counsel to obtain and
review the details of a client’s seven-year-old drug conviction before plea bargaining
when counsel is already going to advise the client to accept a generous plea offer in
a case with little chance of acquittal and in which counsel plans to move to exclude
evidence of the earlier conviction—a motion that was granted before trial. While
Shockman’s trial counsel himself agreed that he was ineffective, on this record we
disagree. See Edwards v. Lamarque, 475 F.3d 1121, 1126 & n.2 (9th Cir. 2007) (en
banc) (noting this Court’s skepticism of an attorney’s mea culpa).
4 Additionally, even if counsel had been deficient, Shockman would still have to
show that he was prejudiced by that deficiency. That requires “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In
the context of a rejected plea agreement, that means that Shockman must demonstrate,
among other things, a reasonable probability that the prosecution would have offered
a beneficial plea agreement after counsel’s hypothetical investigation into the 2002
conviction. See Lafler, 566 U.S. at 164. But the napkin detail was in police reports in
the prosecution’s offsite file of the 2002 conviction, and it is uncertain that the
specific detail could have been obtained other than by a request to the prosecutor, as
the respondents argue. Thus, earlier discovery by Shockman’s counsel may well have
led to the prosecution learning of the pattern too. And Shockman offers no evidence
that the prosecution, likely armed with what the trial judge called “home run material”
(on top of an already compelling case), would even have offered a plea bargain.
Moreover, Shockman’s proposed remedy, simply vacating his conviction, is
odd medicine when the purported malady is the loss of a chance to plead guilty.
“Conceptually, any habeas remedy ‘should put the defendant back in the position he
would have been in if the Sixth Amendment violation never occurred’….” Nunes v.
Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) (quoting United States v. Blaylock,
5 20 F.3d 1458, 1468 (9th Cir. 1994)). Shockman has served his prison sentence and is
now on parole. Were we to grant relief in these circumstances, the most that
Shockman could expect, as a practical matter, would be a reduction of his parole term.
See id. at 1056–57; cf. Dasher v. Att’y Gen., Fla., 574 F.3d 1310, 1318 (11th Cir.
2009) (on habeas, modifying a sentence without disturbing the underlying conviction).
We also reject Shockman’s argument that the Due Process Clause was violated
because his co-defendant effectively acted as a prosecutor. This argument is based on
the fact that it was the co-defendant’s counsel rather than the prosecutor who first
cross-examined Shockman regarding his unique manner of packaging drugs. Despite
Shockman’s argument, however, there was no evidence that the co-defendant had
agreed with the prosecutor to undermine Shockman’s defense. See People v.
Shockman, 124 Cal. Rptr. 3d 329, 341 (Cal. Ct. App. 2011). Rather, the state court
reasonably deemed the co-defendant’s cross-examination “no more than an entirely
legitimate effort to salvage some sympathy [for the co-defendant’s jury nullification
strategy] by demonstrating that Shockman was, if anything, the more experienced and
sophisticated of the two drug dealers.” Id. at 340.
AFFIRMED.
6 FILED Shockman v. Perez, Case No. 16-55195 NOV 22 2017 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.