Ronald Bishop v. Neil McDowell

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2023
• Docket: 22-55324
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 4 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD STEVEN BISHOP, No. 22-55324 D.C. No. Petitioner-Appellant, 5:21-cv-00266-JGB-MAR

v. MEMORANDUM* NEIL MCDOWELL, Warden, Ironwood State Prison,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted March 6, 2023** Pasadena, California

Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges. Concurrence by Judge COLLINS.

Ronald Bishop appeals the district court’s denial of his petition for a writ of

habeas corpus. Bishop claims that his original attorney, who represented him at

* 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). trial and on Bishop’s first appeal, was constitutionally ineffective under Strickland

v. Washington, 446 U.S. 668 (1984). Because both his claims are for ineffective

assistance and are presented in the context of a habeas petition, we review under

the “doubly” deferential standard of considering the Antiterrorism and Effective

Death Penalty Act (AEDPA) and Strickland in tandem. Rowland v. Chappell, 876

F.3d 1174, 1183 (9th Cir. 2017). “Thus, under AEDPA, ‘[t]he pivotal question is

whether the state court’s application of the Strickland standard was unreasonable.’”

Id. (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). We apply this

standard to “the state court’s last reasoned decision on the claim,” Edwards v.

Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (internal quotation

marks and citation omitted), which in this case is the state appellate court’s opinion

denying Bishop’s state habeas petition.

We first consider Bishop’s arguments for why his counsel was ineffective at

trial. Bishop contends that his trial counsel failed to make two arguments in

support of his motions to suppress a search warrant that led to the police

discovering evidence key to Bishop’s conviction. First, Bishop asserts that his trial

counsel should have argued the following: an officer’s bare opinion that someone

who molests children is likely to possess child pornography is insufficient to

establish probable cause to search a suspect’s computer for child pornography.

2 Bishop is correct in noting that we have endorsed such a proposition in the context

of search warrants in which the sole basis for searching the subject’s devices was

that there was probable cause that they would contain child pornography. See

United States v. Needham, 718 F.3d 1190, 1194–95 (9th Cir. 2013); Dougherty v.

City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). But the California Court of

Appeal reasonably concluded that these decisions were not controlling in the

context of a search warrant in which there was probable cause to search the

suspect’s devices based on “the suspect’s relationship to the crime under

investigation”—here, child annoyance. The attesting officer amply detailed how

Bishop’s electronic communications with John Doe 1 indicated there might be

evidence of child annoyance on Bishop’s electronic devices to justify the warrant.

Cf. Needham, 718 F.3d at 1193 (noting that the warrant affidavit in that case failed

even to include “any facts suggesting that Needham possessed or used a computer

or any other electronic devices, whether for illicit purposes or otherwise”);

Dougherty, 654 F.3d at 899 (noting, inter alia, that “[t]here is no evidence of

conversations with students about sex acts” and that “the affidavit does not even

verify that Dougherty owned a computer or the other targets of the search or had

internet service or another means of receiving child pornography at his home”).

Accordingly, raising Needham and Dougherty in challenging the search warrant

3 here would not have undermined the Court of Appeal’s conclusions, on direct

appeal, that the warrant affidavit sufficiently established that there was probable

cause to “believe evidence of the crime of child annoyance or contacting a minor

with a sexual intent would be obtained on [Bishop’s] electronic devices” and that

“[t]his alone would be sufficient for the search and the discovery of child

pornography would have been incidental to the other search.” As a result, the state

habeas court did not reach an objectively unreasonable conclusion in holding that

trial counsel was not deficient in failing to raise Needham and Dougherty in

challenging the search warrant.

Bishop also contends that his trial counsel should have argued that, under

Riley v. California, 573 U.S. 373 (2014), a general suspicion that evidence of

criminal activity will be found in a suspect’s home does not justify searching the

suspect’s electronic devices. But, as the California Court of Appeal accurately

explained, the warrant affidavit detailed how “communications between Bishop

and the minor victim suggested . . . . that the communications with the victim were

occurring over Bishop’s cell phone and the internet, presumably through his

computer.” The state court was not objectively unreasonable in holding that

Bishop’s trial lawyer’s decision to not make this argument was not ineffective

assistance. Nor, contrary to Bishop’s argument, do we think his arguments would

4 have been successful if made in tandem.

Bishop also argues that his trial counsel’s representation of him on appeal

was ineffective assistance. Unlike the prior issue, this argument is not certified for

an appeal, so we treat his briefing on the issues as a request to expand the scope of

the certification. Ninth Circuit Rule 22-1(e); Robertson v. Pichon, 849 F.3d 1173,

1187 (9th Cir. 2017). Here, the only prejudice Bishop claims resulted from his

counsel’s conflicts of interest on appeal was his failure to argue the same points we

considered above. Because those claims were without merit, Bishop has not met

the threshold standard of making a substantial showing of the denial of a

constitutional right required for us to consider the uncertified argument.

Robertson, 849 F.3d at 1187 (standard of review).

AFFIRMED.

COLLINS, Circuit Judge, concurring:

I concur in the memorandum disposition. I write separately only to note that

I agree with Judge Tallman’s view that, to the extent that Dougherty v. City of

Covina, 654 F.3d 892 (9th Cir. 2011), “declar[ed] categorically that there is no

nexus between child molestation and collection of child pornography,” it was

5 wrongly decided. United States v. Needham, 718 F.3d 1190, 1202 (9th Cir. 2013)

(Tallman, J., concurring). It seems eminently reasonable to conclude that, if a

suspect has a demonstrated sexual interest in young children, has recently

affirmatively acted on that interest, and has electronic devices, there is a “fair

probability” that those devices will contain child pornography. Illinois v. Gates,

462 U.S. 213, 238 (1983) (holding that probable cause only requires a “fair

probability”). As Judge Tallman explained, we “should not so easily dispatch” the

“common-sense conclusion[]” that would link “lewd and lascivious conduct

involving young children with possession of pornographic images of the objects of

a predator’s sexual desires.” Needham, 718 F.3d at 1203 (Tallman, J., concurring);

see also Dougherty, 654 F.3d at 901 (Brewster, D.J., concurring in the judgment)

(concluding that “it is a common sense leap that an adult male, who teaches sixth

graders, engaged in this type of inappropriate conduct would likely possess child

pornography”). In an appropriate case, “[w]e need to revisit this issue and consign

hypertechnical decisions like Dougherty”—and Needham—“to the dust bin of

erroneous blanket legal pronouncements devoid of reality.” Needham, 718 F.3d at

1203 (Tallman, J., concurring).