Profitt v. Howe

• Court: District Court, N.D. California
• Decided: January 15, 2020
• Docket: 3:17-cv-07136
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARVIN PROFITT, Case No. 17-cv-07136-JD

8 Petitioner, ORDER RE PETITION FOR 9 v. WRIT OF HABEAS CORPUS AND CERTIFICATE OF 10 LAKE COUNTY PROBATION APPEALABILITY DEPARTMENT, et al., 11 Respondents.

12 13 Marvin Profitt, a former prisoner and probationer, filed a habeas petition pursuant to 28 14 U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted. 15 Respondent filed an answer and a memorandum of points and authorities in support of it, and 16 lodged exhibits with the Court. Profitt filed a reply. The petition is denied. 17 BACKGROUND 18 A jury found Profitt guilty of felony driving with a blood alcohol content of .08 or higher, 19 misdemeanor driving with a suspended licensed for driving under the influence (“DUI”), 20 misdemeanor driving with a license suspended for driving with an excessive blood alcohol content 21 and misdemeanor driving with a license suspended or revoked for other reasons. People v. Profitt, 22 8 Cal. App. 5th 1255, 1259 (Feb. 27, 2017). For sentencing purposes, Profitt had three prior 23 misdemeanor DUI convictions. Id. Profitt was sentenced to three years in county jail, the last 24 year on mandatory supervision. Id. at 1262. On February 27, 2017, the California Court of 25 Appeal affirmed the judgment in a partially published opinion. Id. at 1258; Answer Exs. D-E. 26 The California Supreme Court denied review on June 14, 2017. Docket No. 12, Ex. E. 27 1 The California Court of Appeal summarized the facts as follows: 2 The following evidence was presented at trial. On February 23, 2013, at about 10:00 p.m. in Lakeport, California Highway Patrol 3 Officer Ryan Erickson observed a pickup truck cross a limit line before coming to a complete stop at a stop sign, and later observed 4 the truck’s left tires cross over double solid yellow lines as it proceeded down Soda Bay Road. The truck then turned onto a 5 residential street and Erickson thought “perhaps [the driver] would get away with one for the evening. He made it home and he was 6 safe to go.” However, the truck made a U-turn and returned to Soda Bay Road. Erickson testified: “[T]hat immediately alerted me to the 7 fact that perhaps the driver’s allowing me to pass so I will no longer be following him . . . . I recognized that as what I call a cat and 8 mouse game.” Erickson left the road to let the truck pass and then resumed following the truck. “It took [Erickson] a little bit to catch 9 up,” and he then saw the truck make an abrupt left turn. Erickson activated his emergency lights and pulled the truck over for an 10 investigation.

11 Erickson walked to the driver’s door and spoke to the driver, Profitt. He noticed Profitt’s eyes were red and watery, his breath smelled 12 strongly of alcohol, his speech was slurred, and his demeanor was argumentative, angry or upset. Profitt told Erickson he was on his 13 way home from a casino, he had drunk four Coors Light beers between 5:00 and 9:30 p.m., and his license was suspended. 14 Erickson conducted a number of field sobriety tests (FST's), and Profitt displayed mental and physical impairment in all five tests. 15 After the FST’s, Erickson gave Profitt a preliminary alcohol screening (PAS) breath test. At 10:34 p.m., the PAS reading of his 16 BAC [blood alcohol content] was 0.113 percent, and at 10:36 p.m. the reading was 0.109 percent. Erickson concluded Profitt was too 17 impaired to drive and placed him under arrest. FN. 3. Profitt took an evidentiary breath test (EPAS) at 11:00 p.m. and again at 11:04 18 p.m. The EPAS registered a BAC of 0.13 percent.

19 FN. 3. California Highway Patrol Explorer Ryan Call, a young volunteer who was interested in law enforcement, was 20 a “ride-along” with Erickson at the time of the stop. Call testified that he stood by Erickson while Profitt performed 21 the FST’s, and Profitt smelled of alcohol and performed poorly on the FST’s. Profitt was also wobbly, a bit 22 argumentative, and his [speech] was slightly slurred. He seemed too impaired to drive safely. 23 Erickson’s vehicle was equipped with a mobile video/audio 24 recording system programmed to retain recordings from one minute prior to activation of the vehicle’s emergency lights. The recording 25 of Profitt’s traffic stop was played for the jury.

26 Anthony Valerio, a senior criminalist from the California Department of Justice with training in forensic alcohol analysis, 27 testified that the PAS and EPAS test results indicated Profitt’s BAC was rising during the interval between the tests. For Profitt’s BAC Erickson to the 0.13 percent EPAS measurement one hour later, 1 Profitt would have had to have drunk approximately three and a half beers (42 ounces of 4.2 percent beer or an equivalent amount of 2 alcohol) over time to get his BAC up to 0.07 percent and then drink the equivalent amount of alcohol all at once just prior to driving so 3 that much of the latter alcohol remained in his stomach at the time of the stop. On cross-examination, defense counsel posited that Profitt 4 might have drunk shots of hard alcohol just before leaving the casino. Valerio said if Profitt did not have the alcohol equivalent of 5 three and a half beers in his stomach when stopped by Erickson, the breath test results and Profitt’s performance on the FST’s indicated 6 that Profitt-prior to the stop-was too impaired to drive.

7 Profitt’s Department of Motor Vehicles (DMV) record was admitted in evidence. The record disclosed a 1998 conviction under section 8 23152, subdivision (a); a 2007 conviction under section 23152, subdivisions (a) and (b); and two 2009 convictions under section 9 23152, subdivision (a). The court told the jury the record was relevant only to the misdemeanor license suspension counts and was 10 “not to [be] consider[ed] for any purpose as to the DUI charges, Counts 1 and 2. It has nothing to do with those.” 11 The defense presented expert testimony by Jeffery Louis Zehnder, a 12 forensic toxicologist, who opined that Profitt’s reported performance on the FST’s did not conclusively show he was impaired while 13 driving. Only three of the FST's given (horizontal gaze nystagmus, one-leg stand, and walk and turn) were standardized tests accepted 14 by the National Highway Traffic Safety Administration. While the administered Romberg test was supported by scientific studies and 15 had some value, Profitt’s performance on the test did not indicate alcohol impairment. Further, Profitt was 63 years old at the time of 16 the FST’s and the walk-and-turn and one-leg tests were not very useful in detecting impairment in older people, who tend to have 17 balance problems without alcohol consumption. Zehnder testified that Profitt’s rising BAC level indicated he was absorbing alcohol at 18 the time of the tests, which would tend to overstate BAC results, and Profitt’s BAC probably was lower when he was driving than when 19 he was tested. Absorption rates also vary widely among individuals and circumstances, and a person who took “four shots of 12 ounces 20 simultaneously” could reach a peak BAC anywhere as long as an hour and a half thereafter. “[E]specially with [Profitt’s] relatively 21 good performance on the [FST’s], . . . there'’ no way to conclude he was at or above an .08” when he was stopped. 22 The prosecutor began his closing argument by discussing the 23 misdemeanor charges and Profitt’s prior DUI convictions. The court again admonished the jury that the DMV record was not 24 relevant to Counts 1 or 2. Regarding felony Count 2, the prosecutor argued that for Profitt's BAC to have been below 0.08 percent when 25 he was driving, the jury would have to believe Profitt had three and a half beers all at once after already drinking three and a half beers, 26 and then “with all this unabsorbed booze sitting in his stomach, he gets in his car and begins to drive . . . home . . . clear on the other 27 side of the lake in a ridiculous attempt to race the alcohol home . . . . for the road, not three and a half for the road, . . . [¶] . . . [and] then it 1 necessarily follows mathematically that he was an .08 or more at the casino before he started driving.” On Count 1, the prosecutor 2 reviewed the evidence that Profitt was too impaired to drive: his Vehicle Code violations while driving, his physical appearance and 3 impairment, and his exercise of poor judgment in choosing to drive after drinking and with a suspended license. 4 Defense counsel began his closing argument by critiquing three 5 themes in the prosecution's closing: fear (“we don’t want to have those big, bad drunk drivers on the road. Therefore, . . . [if y]ou 6 think he’s a little bit guilty, convict him”); the misdemeanors (“he’s committed prior drunk driving offenses, therefore he must be guilty 7 now . . . even though the judge has instructed you to the contrary”); and “bad math” (“an assumption . . . that the absorption rate is a 8 fixed amount for every person”). Counsel conceded guilt on the misdemeanors and repeatedly reminded the jury that the prior DUI 9 convictions could not be considered with respect to the felonies. On the felony counts, he minimized evidence of Profitt’s physical 10 impairment during the traffic stop and faulted Erickson for not videotaping the FST’s. Counsel also emphasized Profitt’s rising 11 BAC results, Zehnder’s testimony that absorption rates vary greatly among individuals, and the testing devices’ margins of error. He 12 argued it was not a crime to simply drink and drive, and the jury needed to find beyond a reasonable doubt that Profitt was impaired 13 or had a BAC of 0.08 percent or greater while driving.

14 In rebuttal argument with respect to the misdemeanor charges, the prosecutor encouraged the jury to look at Profitt’s DMV record to 15 see that Profitt “was told . . . ten times” his license was suspended, but “despite prior warnings, [he] was out on the road again.” He 16 also argued, “[T]he important message that we want to send here is the message to this defendant, ‘Don't do this. This is dangerous. It's 17 so dangerous, it's criminal.’”. 18 Profitt, 8 Cal. App. 5th at 1258-62 (alterations and omissions in original) (footnote omitted). 19 STANDARD OF REVIEW 20 A district court may not grant a petition challenging a state conviction or sentence on the 21 basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication 22 of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme Court of the United 24 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in 25 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first 26 prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 27 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual 1 A state court decision is “contrary to” Supreme Court authority only if “the state court 2 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 3 the state court decides a case differently than [the Supreme] Court has on a set of materially 4 indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an “unreasonable 5 application of” Supreme Court authority if it correctly identifies the governing legal principle from 6 the Supreme Court's decisions but “unreasonably applies that principle to the facts of the 7 prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ “simply 8 because that court concludes in its independent judgment that the relevant state-court decision 9 applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the 10 application must be “objectively unreasonable” to support granting the writ. Id. at 409. 11 Under § 2254(d)(2), a state court decision “based on a factual determination will not be 12 overturned on factual grounds unless objectively unreasonable in light of the evidence presented in 13 the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 14 1103, 1107 (9th Cir. 2000). In conducting its analysis, the federal court must presume the 15 correctness of the state court’s factual findings, and the petitioner bears the burden of rebutting 16 that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 17 The state court decision to which § 2254(d) applies is the “last reasoned decision” of the 18 state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 19 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to 20 consider the petitioner’s claims, the Court looks to the last reasoned opinion. See Nunnemaker at 21 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). In this case the Court 22 looks to the opinion of the California Court of Appeal for the sole claim in the petition. 23 As grounds for federal habeas relief, Profitt alleges that trial counsel was ineffective for 24 making several inappropriate comments in closing argument. Trial counsel stated that Profitt was 25 a fool for not pleading guilty to the misdemeanor charges of driving with a suspended license and 26 that he, trial counsel, was not much of a drinker and did not want drunk drivers on the road. 27 Answer Ex. E at 16-17. 1 INEFFECTIVE ASSISTANCE OF COUNSEL 2 Legal Standard 3 A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth 4 Amendment right to counsel, which guarantees not only assistance, but effective assistance of 5 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any 6 claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning 7 of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. 8 To prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must 9 establish two things. First, he must establish that counsel’s performance was deficient in that it 10 fell below an “objective standard of reasonableness” under prevailing professional norms. 11 Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel’s 12 deficient performance by showing “there is a reasonable probability that, but for counsel’s 13 unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A 14 reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 15 A “doubly” deferential judicial review is appropriate in analyzing ineffective assistance of 16 counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 202 (2011); Harrington v. 17 Richter, 562 U.S. 86, 105 (2011) (same). The rule of Strickland to review a defense counsel’s 18 effectiveness with deference gives the state courts leeway in reasonably applying that rule, which 19 “translates to a narrower range of decisions that are objectively unreasonable under AEDPA.” 20 Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 21 U.S. 652, 664 (2004)). The “question is not whether counsel’s actions were reasonable. The 22 question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential 23 standard.” Harrington, 562 U.S. at 105. See, e.g., Demirdjian v. Gipson, 832 F.3d 1060, 1072-74 24 (9th Cir. 2016) (denying ineffective assistance claim for defense counsel’s decision to rebut 25 prosecutor’s comments in closing argument rather than object at trial). 26 Background 27 Trial counsel sought to bifurcate the misdemeanor counts from the felonies to prevent the 1 phase of the felony trial. Profitt, 8 Cal. App. 5th at 1263. The trial court denied the motion to 2 bifurcate.1 In order to prevent the prior DUI convictions from being heard by the jury, trial 3 counsel said that Profitt would plead guilty to the misdemeanors. Answer Ex. E at 16. But Profitt 4 refused to plead guilty to the misdemeanors. Id. In his opening statement trial counsel told the 5 jury:

6 It’s going to be clear to you eventually that [Profitt] was driving without a proper license. . . . There may be some quibbling issues 7 over why the license was suspended, but really as a practical matter, those make zero difference. The fact of the matter is his license was 8 suspended. [¶] And as to Counts 3 through 5, some or all of those are likely to be found to be true. 9 10 Answer Ex. E at 16 (alterations and omissions in original). In closing arguments trial counsel 11 argued that the jury should not convict Profitt of the felony driving under the influence just 12 because he had been convicted of the same offenses in the past. Reporter’s Transcript (“RT”) at 13 388. 14 With respect to the misdemeanor counts of driving with a suspended license, trial counsel 15 stated:

16 But it’s an uncontested issue. Let’s face it. I mean, I told you when we started you weren’t going to be dealing with the questions in 17 Counts 3 through 5 [the misdemeanor counts]. Mr. Profitt did not stand before you and present evidence contradicting it. It’s a 18 nonissue. The only reason we’re hearing about the DUIs is because, amongst other things, Mr. Profitt it too much of a fool to plead 19 guilty to them and keep it out of court. But more importantly, it’s your consideration of the evidence solely relating to the DUI that 20 counts. 21 RT at 388. Trial counsel continued to argue quite extensively that the prosecution had not met its 22 burden of showing that Profitt had a blood-alcohol level of .08 or higher and that the prior 23 convictions were irrelevant. RT at 388-96. 24 Profitt now contends that trial counsel’s statement that Profitt was a fool for not pleading 25 guilty to the misdemeanor counts amounted to ineffective assistance of counsel. Profitt filed a 26

27 1 The California Court of Appeal affirmed the trial court’s decision denying the motion to 1 motion for a new trial over the issue. The trial court denied the motion:

2 the [fool] comment “was appropriately a strategic move. I observed it. And I also heard the tone of voice, the presentation. In my 3 opinion, it was [trial counsel’s] attempt to depict his client as unsophisticated and thereby engender sympathy with the jury. I 4 know that’s what was intended. He was only referring to the minor charges in this case to which there was no defense. . . . [¶] . . . And 5 you[‘ve] got to look at the entire case as a whole . . . . [Trial counsel is] a very effective attorney.” 6 7 Answer Ex. E. at 16-17 (alterations and omissions in original). 8 Profitt also says that trial counsel was ineffective for another statement made in closing 9 arguments:

10 It is not a crime in California to drink and drive or even to be a little bit drunk. It is not a crime in California to drink and drive or even 11 to be a little bit drunk. It is not a crime in California to drink and drive. The fear that is thrown at you, “Oh, we can’t have anybody 12 on the road. He thought to take a drink, and therefore.” And that’s not a crime. Maybe it should be. I mean, I’m really not a drinker, 13 so I’m not probably the guy that Mr. Profitt should have found to do his case for him, I suppose. But I’m not much of a drinker, so I’m 14 certainly right there with [the prosecution]. I don’t want fools out there on the road drinking and driving any more than any of the rest 15 of you do.

16 RT at 396. Profitt contends that the not-a-drinker statements constituted ineffective assistance of 17 counsel. Right after these comments, trial counsel added: 18 But what I want more, what I want more than stopping that is that 19 we have a system of justice that does not convict people because we don’t like them, a system of justice that only results in convictions 20 when the People have met their burden.

21 “Freedom is not worth having if it does not connote freedom to err. It passes my comprehension how human beings, be they ever so 22 experienced and able, can delight in depriving other human beings of that right.” It’s not a crime to drink and drive. We don’t like it 23 maybe. Maybe you should, maybe you shouldn’t. But we’re not so rigid a society yet that we’re imposing great criminal sanctions on 24 people for doing things that we consider to be inappropriate or foolish choices. 25 RT at 396-97. 26 Discussion 27 The California Court of Appeal evaluated and denied these claims: We agree with the trial court that counsel’s “fool” comment was a 1 strategic move to concede Profitt’s obvious guilt of the misdemeanor charges and thereby establish credibility with the jury. 2 “[G]ood trial tactics often demand complete candor with the jury[.] . . . [I]n light of the weight of the evidence incriminating a defendant, 3 an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client’s innocence.” (People v. 4 Mitcham (1992) 1 Cal. 4th 1027, 1060-1061.) Significantly, the trial court specifically noted counsel’s demeanor when making the 5 comment, implying that counsel effectively communicated his purpose to the jury and did not inadvertently slight his client. We 6 defer to the trial court’s assessment of such matters. (Cf. People v. Lenix (2008) 44 Cal. 4th 602, 626–627 [appellate courts defer to 7 trial court assessment of prosecutor’s demeanor in making peremptory challenges allegedly based on race].) The trial court 8 also reasonably found counsel’s apparently dismissive “fool” comment was an attempt to portray Profitt as unsophisticated and 9 thereby engender some sympathy. (See People v. McGautha (1969) 70 Cal.2d 770, 784 [reference to “‘slob type defendants’ ” may have 10 been intended to “elicit some feeling of sympathy from the jury”].)

11 We also conclude the “I’m really not a drinker” comment could have been a strategic move by counsel to gain respect from the jury 12 by condemning irresponsible behavior, but nonetheless insisting on the jury’s duty to acquit if the specific legal elements of the charged 13 crime were not proved. In People v. Wade (1988) 44 Cal. 3d 975, for example, “trial counsel, faced with defending an appalling crime 14 and responding to the prosecutor’s pointed suggestions of a fabricated defense, made a [reasonable] tactical choice to candidly 15 admit his client’s guilt, acknowledge the heinous nature of the offense, and concentrate on the theory that defendant . . . was insane 16 or incapable of forming the requisite criminal intent when the offense was committed. The fact that this argument ultimately 17 failed is not a negative reflection on counsel’s competence.” (Id. at pp. 986–987, fn. omitted; see People v. McGautha, supra, 70 Cal.2d 18 at pp. 783–784 [not error to tell jury defendant and his counsel would accept whatever verdict jury might deliver because 19 “insist[ance] in the face of very weighty evidence of guilt that [defendant] be acquitted, counsel might well have impaired his 20 credibility at the penalty phase”].) Notably, Profitt’s counsel framed this part of his argument by urging the jury to adhere to its duty to 21 apply the law and not be swayed by fear: “It is not a crime in California to drink and drive or even to be a little bit drunk. . . . The 22 fear that is thrown at you, ‘Oh, we can’t have anybody on the road . . . [who took] a drink . . . .’ ” He expressed sympathy for the 23 underlying fear—drinking and driving is “not a crime. Maybe it should be. I mean, I’m really not a drinker . . . . I’m certainly right 24 there with [the prosecutor]. I don’t want fools out there on the road drinking and driving any more than any of the rest of you do.” 25 Counsel then appealed to the jury’s sense of justice: “what I want more than stopping that is that we have a system of justice that does 26 not convict people because we don’t like them . . . . [¶] ‘Freedom is not worth having if it does not connote freedom to err.” He went on 27 to argue: “‘You can protect your liberties in this world only by that does not mean that you’re allowed to suspend[] the rules of 1 criminal justice and simply say, ‘I’m going to disregard this conclusion, this reasonable inference, because I don’t like it.’” 2 Again, the fact this reasonable approach to closing argument was not effective in obtaining an acquittal does not mean Profitt received 3 ineffective assistance of counsel. 4 Answer Ex. E at 17-19 (alterations and omissions in original). 5 The finding that trial counsel was effective in his tactical decisions was not objectively 6 unreasonable. The court of appeal applied the proper standards and engaged in a thoughtful 7 discussion of both claims. Profitt has not shown otherwise, either as a matter of law or fact. 8 Profitt did not present a statement from trial counsel explaining the reasons for the trial tactics, or 9 show that he attempted to secure such a statement. The record does not contain any evidence that 10 might overcome the presumption that trial counsel’s conduct was within the range of reasonable 11 professional advice. See Burt v. Titlow, 571 U.S. 12, 23 (2013) (concluding that without any 12 evidence demonstrating that counsel gave inadequate advice regarding withdrawal of a guilty plea, 13 there is strong presumption that counsel’s performance was not deficient). 14 The finding by the court of appeal that trial counsel made the statements to portray Profitt 15 as unsophisticated and thereby engender the jury’s sympathy also was not objectively 16 unreasonable. There was overwhelming evidence that Profitt was guilty of the misdemeanors by 17 driving with a suspended license. By refusing to plead guilty to these counts the jury heard about 18 Profitt’s prior DUI convictions. Trial counsel was left with very few options in light of the 19 circumstances. It was a reasonable tactic to bring up all of these negative facts in an attempt to 20 establish credibility with the jury and remind it that the prior DUIs were irrelevant to the current 21 charges. See Yarborough v. Gentry, 540 U.S. 1, 9-11 (2003); United States v. Fredman, 390 F.3d 22 1153, 1157-58 (9th Cir. 2004) (affirming validity of “confession and avoidance” tactic to avoid 23 diminishing credibility). 24 In addition, Profitt has not shown that the California Court of Appeal was objectively 25 unreasonable in finding that the “I’m really not a drinker” comments were a reasonable trial tactic. 26 The state court found that trial counsel could have been condemning inappropriate behavior by 27 emphasizing that the jury must acquit if the elements of the crime were not proved. Profitt had 1 there was scientific evidence from the breath test that he had been drinking; his driving was 2 somewhat impaired, as were his mental and physical faculties and his breath smelled strongly of 3 alcohol. Trial counsel made his statement about not being a drinker while also emphatically 4 arguing that it is not a crime to drink and drive if you are below the legal limit, that you cannot 5 convict people because you do not like them and you must follow the rules of the criminal justice 6 system. “Although courts may not indulge ‘post hoc rationalizations’ for counsel’s decisionmaking 7 that contradicts the available evidence of counsel’s actions, . . . neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a ‘strong presumption’ 8 that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’” Harrington, 562 U.S. at 109 (citations omitted); Cullen, at 196, (“But Strickland 9 specifically commands that a court ‘must indulge [the] strong presumption’ that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’”) (alteration in original) 10 (quoting Strickland, 466 U.S. at 689-90). Profitt has failed to meet his burden in showing that trial counsel was deficient in light of the high standard for such claims. See Yarborough, 540 U.S. at 6. 11 Because the court of appeal found no deficiencies in trial counsel’s conduct, it did not 12 address the second Strickland element of prejudice. That is, of course, perfectly sound legally 13 because a failure to establish either element is enough to bar a Strickland claim. See Siripongs v. 14 Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (It is unnecessary for a federal court to address the 15 prejudice prong of the Strickland test if the petitioner has failed to establish incompetence under 16 the first prong.) The Court independently finds that no prejudice here.2 Even assuming that trial 17 counsel’s performance was deficient, which is not the case, Profitt was not prejudiced. There was 18 no defense to the misdemeanor charges of driving with a suspended license; Profitt had a 19 suspended license, and he was driving. For the felony DUI conviction, there was also 20 overwhelming evidence. The police officer observed Profitt driving erratically; Profitt’s eyes 21 were red and watery and his breath smelled of alcohol; he performed poorly on the field sobriety 22 tests; and the multiple breathalyzer tests showed that his blood alcohol content was over the legal 23 limit. Profitt also admitted to drinking several beers in the prior hours. Profitt presented expert 24 evidence, but a de novo review of all the evidence presented shows that Profitt has not cleared the 25 high legal hurdle to establish but for trial counsel’s errors, the result of the proceeding would have 26 27 1 been different. See Demirdjian v. Gipson, 832 F.3d 1060, 1066 (9th Cir. 2016) (“[e]ven on de 2 || novo review, the standard for showing ineffective assistance is ‘highly deferential.’”). 3 CERTIFICATE OF APPEALABILITY 4 The federal rules governing habeas cases brought by state prisoners require a district court 5 that issues an order denying a habeas petition to either grant or deny therein a certificate of 6 appealability. See Rules Governing § 2254 Cases, Rule 11(a). 7 A judge shall grant a certificate of appealability “only if the applicant has made a 8 || substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 9 || certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district 10 || court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 11 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 12 || court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 13. || 473, 484 (2000). 14 Here, petitioner has made no showing warranting a certificate and so none is granted. 3 15 CONCLUSION a 16 1. For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A 3 17 Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 18 || Cases. 19 2. The Clerk shall close this case. 20 IT IS SO ORDERED. 21 Dated: January 15, 2020 22 23 JAMES ATO 24 United Sfates District Judge 25 26 27 28

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 MARVIN PROFITT, 4 Case No. 17-cv-07136-JD Plaintiff, 5 ‘ Vv. CERTIFICATE OF SERVICE LAKE COUNTY PROBATION 7 DEPARTMENT, et al., 8 Defendants. 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 That on January 15, 2020, ISERVED a true and correct copy(ies) of the attached, by 13 = placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 15 receptacle located in the Clerk's office. Q 16

= 17 || Marvin Profitt 4678 Inyo Way Z 18 Kelseyville, CA 95451 19 20 Dated: January 15, 2020 21 22 Susan Y. Soong 73 Clerk, United States District Court 24

6 LISA*R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28