Michael Kellywood v. David Shinn

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2023
• Docket: 22-15778
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL KELLYWOOD, No. 22-15778

Petitioner-Appellant, D.C. No. 4:21-cv-00234-JCH

v. MEMORANDUM** RYAN THORNELL,*

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona John Charles Hinderaker, District Judge, Presiding

Submitted December 8, 2023 *** San Francisco, California

Before: BRESS and JOHNSTONE, Circuit Judges, and MOSKOWITZ, **** District Judge.

* Ryan Thornell is automatically substituted as Respondent under Federal Rule of Civil Procedure 25(d). ** 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). **** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. Petitioner Michael Kellywood appeals the district court’s denial of his petition

for a writ of habeas corpus. We granted a certificate of appealability limited to a

single issue: “whether trial counsel was ineffective for failing to sufficiently research

and support the motion to compel production of counseling and medical records.”

We review the district court’s decision to deny the petition for a writ of habeas

corpus de novo. Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2011). We also

review ineffective assistance of counsel claims de novo. Beardslee v. Woodford,

358 F.3d 560, 569 (9th Cir. 2004). We must affirm the denial of habeas relief unless

the Arizona Court of Appeals was objectively unreasonable in its application of

Strickland v. Washington, 466 U.S. 668 (1984). See 28 U.S.C. § 2254(d)(1). We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

The Arizona Court of Appeals’ application of Strickland was not objectively

unreasonable. Under Strickland, a claim of ineffective assistance of counsel has two

components: (1) “the defendant must show that counsel’s performance was

deficient”; and (2) “the defendant must show that the deficient performance

prejudiced the defense.” 466 U.S. at 687.

Under the first Strickland prong, whether an attorney’s performance was

deficient is judged against an objective standard of reasonableness. Id. at 687–88.

Recognizing the “tempt[ation] for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence, . . . a court must indulge a strong presumption

2 that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689 (citation omitted).

Here, the state court’s determination that trial counsel acted reasonably in his

representation of Kellywood was itself reasonable under Strickland. First, counsel

timely prepared the appropriate motion to compel the records Kellywood sought

(“Motion”), complete with reasoning and legal analysis. Next, the Arizona Court of

Appeals on direct appeal from Kellywood’s conviction was split on whether to

affirm or reverse the denial of the Motion, showing that at least one appellate judge

thought the Motion had merit. Further, counsel’s omission of the identities of the

counselor and medical professionals whose records were sought did not affect the

merits of the Motion. Even in hindsight, Kellywood points to nothing else in the

record that counsel could have included in the Motion that would have ensured its

success. Finally, though the Motion could have been argued differently, no

alternative strategy could have changed the speculative nature of the exculpatory

evidence requested. Thus, counsel’s conduct was within Strickland’s “wide range

of reasonable professional assistance,” and the state court was not unreasonable in

holding so. See id.

To satisfy the prejudice standard, under the second Strickland prong, a

petitioner 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.

3 at 694. This standard requires a “‘substantial,’ not just ‘conceivable,’ likelihood of

a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting

Harrington v. Richter, 562 U.S. 86, 112 (2011)).

Here, the state court’s finding that counsel’s conduct did not prejudice the

outcome of the case was a reasonable application of Strickland. First, the existence

of any exculpatory information in the requested records is so speculative that it is

unlikely a more ideal motion to compel would have been granted. Further, even if

trial counsel had succeeded in acquiring the exculpatory records sought, it is still not

likely that this would have changed the outcome of the trial. This is because the

evidence supporting Kellywood’s conviction was substantial. In the decision

denying post-conviction relief, the trial judge stated, “A.K. was a very believable

witness. Her testimony included many small and seemingly unimportant details that

added dramatically to her credibility. More importantly, the physical evidence from

the carpeting was overwhelming.” Evidence of Kellywood’s semen and A.K.’s

DNA in a home on which Kellywood was working, where A.K. testified that one of

the acts of sexual intercourse occurred, further corroborates A.K.’s testimony. In

addition, the fact that a child did not report the sexual abuse by her adoptive father

to a medical professional is not significantly exculpatory, especially since

Kellywood had threatened A.K. that he would kill himself if she told anyone about

his sexual abuse. Accordingly, it is unlikely that a more effective motion would

4 have led to a different outcome at trial, and the state court was not unreasonable in

denying the ineffective assistance of counsel claim.

AFFIRMED.