Lyle Gilbert v. Daniel Paramo

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 18-15162
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYLE ROBERT GILBERT, No. 18-15162

Petitioner-Appellant, D.C. No. 3:16-cv-03449-VC

v. MEMORANDUM* DANIEL PARAMO, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted February 11, 2019** San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

Lyle Gilbert appeals the district court’s order dismissing his petition for writ of

habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the

* 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). district court’s order de novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir. 2008).

We affirm.

Gilbert was convicted of two counts of sexual penetration of a child ten years

of age or younger for molesting his daughter on two occasions. Gilbert’s wife and

daughter testified against him at trial, and his confession to police was played for the

jury. Gilbert’s counsel called an expert on false confessions and extensively

cross-examined Gilbert’s daughter and wife, pointing out their possible reasons to lie.

Gilbert argues that his trial counsel was constitutionally ineffective for failing

to call an expert witness to testify “that Savanna was either lying or believed an

untruth.” An ineffective assistance of counsel claim involves a two-prong inquiry.

“First, the defendant must show that counsel’s performance was deficient.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. Gilbert’s counsel did not perform

deficiently. There was no evidence to suggest that Savanna’s memories were false or

implanted, and failure to call an expert is not deficient where there is no evidence to

support a defense. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).

Furthermore, counsel’s strategic decision to impeach Savanna’s testimony by

cross-examining her about her motivations to lie was reasonable in light of the

evidence available to support that theory.

2 We decline to expand the certificate of appealability to address the two

uncertified claims Gilbert raises. Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th

Cir. 2012).

AFFIRMED.