Shaneyfelt v. Commissioner, DOC 06-CV-263-PB 01/28/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Harold E. Shaneyfelt, Jr.
v. Case No. 06-cv-263-PB Opinion No. 2008 DNH 018 Commissioner, N.H. Department of Corrections
MEMORANDUM AND ORDER
Harold E. Shaneyfelt, Jr. was convicted of three counts of
felonious sexual assault. Shaneyfelt has petitioned this court
for a writ of habeas corpus, alleging that: (1) the trial court
erred by permitting the state to amend the indictment on the
first day of trial; and (2) trial counsel rendered ineffective
assistance by failing to object to the prosecution's improper
"golden rule" closing argument, failing to object to the
prosecution's improper expression of personal belief in
Shaneyfelt's guilt during closing arguments, and denying
Shaneyfelt the opportunity to participate actively in jury
selection. The government has moved for summary judgment. For
the reasons discussed herein, I grant the government's motion for
summary judgment. I. BACKGROUND
A. The Crime
On October 3, 1997, at around 5:00 pm. Dawn Young dropped
off her 9-year old and 7-year old daughters (respectively, "MYA"
and "MYB") at the home of Bill and Betty Bielinski, the girls'
grandparents. Dawn's son ("MYC") was already at the Bielinski
home. Harold Shaneyfelt arrived a few hours later and began
watching movies and playing with MYA, MYB, and MYC on the home's
enclosed sun porch. Later that night, after the children had
finished playing, MYC went inside and the girls, clad in t-shirts
and underwear, got into a sofa bed on the sun porch where they
normally slept when visiting the Bielinskis. Shaneyfelt, who was
still clothed, crawled into the bed in between the two girls and
sexually assaulted them by repeatedly touching their vaginal
areas.
B. The Indictment and Trial
The Rockingham County Grand Jury returned an indictment
charging Shaneyfelt with sexually assaulting MYA and MYB in
violation of N.H. Rev. Stat. Ann. § 632-A:3, III. The indictment
charged that Shaneyfelt sexually assaulted MYB by purposely
- 2 - touching her in "the vaginal area, over the underwear . . . under
circumstances that can be reasonably construed as being for the
purpose of sexual arousal or gratification."
During jury selection, Shaneyfelt insisted that counsel
challenge a potential juror. Counsel, however, told Shaneyfelt
to be quiet and refused to comply with his demand.1 The record
does not reveal why Shaneyfelt wanted to challenge the juror, and
there is no evidence suggesting that he communicated his concern
to the court.
After the jury was sworn, but before the trial began, the
state moved to amend the indictment as to MYB to strike out the
phrase "over the underwear." The trial court granted this motion
over Shaneyfelts objection.
MYB testified at trial that Shaneyfelt touched her vagina
with his hand inside her underwear. During her police
interviews, however, MYB initially denied that Shaneyfelt had
done anything inappropriate, and later told a police detective
that Shaneyfelt had touched her outside, not inside, her
1 Shaneyfelt did not provide a transcript of the voir dire, but did swear to the above factual averments. Because the government did not provide any contradictory evidence, I rely solely on Shaneyfelts sworn statement.
- 3 - underwear. Shaneyfelts attorney cross-examined MYB regarding
inconsistencies between her trial testimony and her statements to
the police.
Shaneyfelts attorney gave the first closing argument. He
began by noting that "it is at least possible that at the
conclusion of all of this, an innocent man could be convicted.
There's nothing that terrifies a defense lawyer more than that."
He then argued that Shaneyfelt's touching had either been
inadvertent or entirely fabricated by the girls. He attacked
their credibility by highlighting the lack of detail in MYA's
testimony and the inconsistencies in M Y B 's testimony, which
mostly related to collateral facts such as what they had eaten
for dinner on the evening of the crime, what movie they had
watched, and so on.
The prosecutor began his closing argument with an anecdote
about an injury he had suffered while playing basketball. He
remembered certain aspects vividly -- such as going to the
hospital and getting x-rays -- but could not remember what
clothes he had been wearing or what he had eaten for dinner. He
said:
- 4 - And why is that? It's . . . the nature of who we are. It's the nature of how we think . . . . [W]e remember the big things. We remember the big happy events. We remember the weddings. We remember the graduations. And we remember the sad things. We remember the funerals. We remember when somebody's mean to us, really mean to us and hurts us. And we know about them. And we remember facts about them. But there's a lot of stuff that goes with it that you don't remember. And use your common sense and judgment when you're thinking about that. And what are the things that you hold and the memories that you take with you and that you can recall? And you're thinking about these things as adults, but what we're talking about here is two kids who at the time one just turned seven, . . . and the other one was nine. So you use your common sense as adults to inform your decisions. But at the same time, try not to hold them to the same standard as an adult does. You have to think about how do kids deal with things. How do kids react? And try and use that as your guide when you're assessing their credibility. The things about the inconsistencies, about, you know, who had supper with -- what did you have for supper? Who pulled out the couch? Who put in the movie? Consider that for what you think it's worth. I'm not going to tell you to not consider it. You -- are going to judge what you think is rightand what you think happened, and I don't presume to tell you anything about that.
The prosecutor ended his closing by stating:
I think lastly I'll just end with this statement. [Defense counsel] had indicated that to be scared about convicting an innocent man, and the thing is is [sic] that he's not innocent . . . . Don't have a fear of convicting this guy. He is guilty of child molestation. He molested those girls. He did it, and he's guilty. Return verdicts of guilty on all three counts, ladies and gentlemen, these girls did only what we could expect you to do. He did it.
- 5 - Although defense counsel objected to another, unrelated aspect of
the closing, he objected neither to the basketball injury analogy
nor to the discussion of S h aneyfelts guilt.
The jury found Shaneyfelt guilty on all three counts of
felonious sexual assault.
C. Direct Appeal and Post-Conviction Proceedings
Shaneyfelt filed a direct appeal with the New Hampshire
Supreme Court, alleging, among other things, that the trial court
erred in allowing the government to amend the indictment to
delete the statement that Shaneyfelt had assaulted MYB "over the
underwear." In rejecting this argument, the court concluded that
the amendment was not problematic because it neither altered an
element of the charged offense nor otherwise prejudiced
Shaneyfelts defense. State v. Shaneyfelt. No. 2000-636 (N.H.
Oct. 25, 2002) (order denying direct appeal) ("NHSC Oct. 25, 2002
Order").
Shaneyfelt later filed a petition for post-conviction relief
in the Rockingham County Superior Court, alleging ineffective
assistance of counsel. The superior court denied Shaneyfelts
motion on November 20, 2003. Shaneyfelt appealed to the New
Hampshire Supreme Court, and on February 11, 2004, the Supreme
- 6 - Court remanded the case to the superior court for additional
fact-finding. On remand, the superior court rejected
Shaneyfelts ineffective assistance claims. State v. Shaneyfelt.
No. 98-S-782 (N.H. Super. C t . Dec. 14, 2005) (order denying
motion for postconviction relief) ("N.H. Super. C t . Dec. 14, 2005
Order"). Shaneyfelt appealed the superior court's ruling to the
New Hampshire Supreme Court, which summarily declined his appeal
on June 30, 2006.
II. STANDARD OF REVIEW
I review Shaneyfelt's petition under the standards
established by the Anti-Terrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254. Under AEDPA, if a state court has
adjudicated the habeas petitioner's claim on the merits, a
federal court may grant relief to the petitioner only if the
state court's adjudication resulted in a decision that "was
contrary to" clearly established federal law, involved an
"unreasonable application" of clearly established federal law, or
was based on an "unreasonable determination of the facts in light
of the evidence presented." 28 U.S.C. § 2254(d). An application
of law is unreasonable when there is "some increment of
- 7 - incorrectness beyond error . . . . The increment need not
necessarily be great, but it must be great enough to make the
decision unreasonable in the independent and objective judgment
of the federal court." McCambridge v. Hall. 303 F.3d 24, 36 (1st
C i r . 2002 ) .
Where there has been at least one reasoned state court
judgment rejecting a federal claim, the habeas court should look
through later unexplained orders upholding that judgment or
rejecting the same claim and presume that those orders rest upon
the same ground as the prior order. Ylst v. Nunnemaker. 501 U.S.
797, 803 (1991); see also Phoenix v. Matesanz. 189 F.3d 20, 25
(1st Cir. 1999). In this case, there are two reasoned state
court judgments that I may look to for guidance. See NHSC Oct.
25, 2002 Order (denying relief as to amendment of the
indictment); N.H. Super. C t . Dec. 14, 2005 Order (denying relief
as to ineffective assistance).
If the state court does not expressly apply the federal
standard but resolves the issue under a state law standard that
is at least as favorable to defendants as the federal standard,
the reviewing court "will presume the federal law adjudication to
be subsumed within the state law adjudication." Teti v. Bender. 507 F.3d 50, 56 (1st Cir. 2007) (quoting McCambridge v. Hall. 303
F .3d 24, 35 (1st Cir. 2002)).
A federal court will presume that the state court's findings
of fact are correct. For this purpose, the term "facts" refers
to "basic, primary, or historical facts," such as witness
credibility and recitals of external events. Sanna v. DiPaolo,
265 F.3d 1, 7 (1st Cir. 2001) (quoting Bryson v. Ward. 187 F.3d
1193, 1211 (10th Cir. 1999)). The habeas petitioner may defeat
the presumption of correctness only with clear and convincing
evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Ouber
v. Guarino. 293 F.3d 19, 27 (1st Cir. 2002). This presumption of
correctness is equally applicable when a state appellate court,
as opposed to a state trial court, makes the findings of fact.
Norton v. Spencer. 351 F.3d 1, 6 (1st Cir. 2003) (quoting Sumner
v. Mata. 455 U.S. 591, 593 (1982)).
Ill. ANALYSIS
Shaneyfelt first argues that the trial court erred when it
permitted the state to amend the indictment on the first day of
trial. He also argues that his trial counsel was constitu
tionally ineffective because he failed to object to the
- 9 - prosecutor's improper "golden rule" argument, failed to object
to the prosecutor's improper expression of personal belief in
Shaneyfelt's guilt, and denied Shaneyfelt the right to
participate in jury selection. I address each argument in turn.
A. Amendment of the Indictment
Shaneyfelt argues that the trial court's decision to amend
the indictment as to MYB to strike out the phrase "over the
underwear" violated his rights to due process and fundamental
fairness under the Sixth and Fourteenth Amendments.2
The warden has a strong argument that I should review the
New Hampshire Supreme Court's denial of Shaneyfelt's claim under
AEDPA's deferential standard of review because the state law
standard that the New Hampshire Supreme Court used in disposing
of Shaneyfelt's claim is at least as protective of Shaneyfelt's
rights as the likely federal standard. Compare State v. French.
146 N.H. 97, 100-01( 2001) and United States v. Fornia-Castillo.
408 F.3d 52, 66 (1st Cir. 2005). I need not resolve Shaneyfelt's
2 The government argues that Shaneyfelt's federal claim is procedurally barred because he did not preserve the claim at the trial court level and failed to fully brief it in his direct appeal. Because I deny Shaneyfelt's petition on the merits, I need not address this argument. See 28 U.S.C. § 2254(b)(2).
- 10 - claim on this basis, however, because it cannot survive even
under a de novo standard of review.
The United States Supreme Court has held that an actual or
constructive amendment to a federal indictment that broadens an
element of the charged offense is a per se ground for reversal
under the Fifth Amendment's Grand Jury Clause. Stirone v. United
States, 361 U.S. 212, 215-16 (1960); see also United States v.
Miller, 471 U.S. 130, 138-45 (1985) (an amendment that merely
narrows the grounds on which the case will be tried is not
improper). The First Circuit has further explained that even if
the indictment is not impermissibly amended in that way, the
Grand Jury Clause entitles a defendant to relief if a variance
between the indictment returned by the grand jury and the
evidence produced at trial has caused unfair prejudice to the
defendant. United States v. Fornia-Castillo. 408 F.3d 52, 66
(1st C i r . 2005) .
The United States Supreme Court has not yet determined
whether the exacting standards for improper amendments and
variances that apply to federal indictments under the Fifth
Amendment's Grand Jury Clause should also apply to amendments to
state indictments that are challenged under the Sixth and
- 11 - Fourteenth Amendments. Haines v. Rislev, 412 F.3d 285, 291 (1st
Cir. 2005) (citing Apprendi v. New Jersey. 530 U.S. 466, 499
(2000)), cert, denied. 546 U.S. 1077 (2005). Faced with this gap
in the law, at least two courts have applied the Stirone
analytical framework to state prosecutions under a Sixth
Amendment fair notice theory. See Hunter v. New Mexico. 916 F.2d
595, 598 (10th Cir. 1990) (per curiam); Gray v. Raines. 662 F.2d
569, 572 (9th Cir. 1981). Other courts limit the Sixth Amendment
issue by asking only whether the defendant was given notice and
an opportunity to respond to the charges -- an easier standard
for the government to meet. See, e.g.. Wilson v. Lindler, 995
F.2d 1256, 1264 (4th Cir. 1993) (Widener, J., dissenting),
adopted on reh'q by 8 F.3d 173, 175 (4th Cir. 1993) (en banc)
(refusing to conduct a Stirone analysis, and instead defining the
Sixth Amendment standard as being whether the defendant was given
notice and an opportunity to respond). The First Circuit has not
yet decided which standard to adopt. Haines. 412 F.3d at 291
(describing the circuit split but not taking a position). In
analyzing Shaneyfelt's claim, I assume without deciding that he
is entitled to the more protective Stirone standard.
- 12 - Reviewing Shaneyfelt's claim de novo, I agree with the New
Hampshire Supreme Court that the amendment at issue was not per
se improper because it did not alter an element of the crime with
which Shaneyfelt had been charged. The indictment (both
originally and as amended) charged Shaneyfelt under N.H. Rev.
Stat. Ann. § 632-A:3 III, which makes it a crime when a person
"[ejngages in sexual contact with a person other than his legal
spouse who is under 13 years of age." The term 'sexual conduct'
is defined as "the intentional touching whether directly, through
clothing, or otherwise, of the victim's or actor's sexual or
intimate parts, including breasts and buttocks" if the conduct
"can be reasonably construed as being for the purpose of sexual
arousal or gratification." N.H. Rev. Stat. Ann. § 632-A:2 IV;
see also State v. Dixon. 144 N.H. 273, 283-84 (1999) (discussing
breadth of term "touch" in the statute as a whole and drawing no
distinction between touching underneath clothing and touching
through clothing). Under the terms of the statute, then, when
Shaneyfelt touched M Y B 's vaginal area for the purpose of sexual
arousal, his touch qualified as "sexual contact" regardless of
whether he touched MYB over or under her underwear. Thus, the
court did not expand an element of the offense by striking the
- 13 - phrase "over the underwear" from the indictment.
Shaneyfelt has also failed to present a persuasive argument
that he was unfairly prejudiced by the amendment. As the New
Hampshire Supreme Court noted, Shaneyfelt did not request a
continuance. Nor does it appear from the record that the
amendment interfered with defense counsel's ability to cross-
examine MYB or otherwise mount a defense. Accordingly,
Shaneyfelt was not unfairly prejudiced by the amendment.
B. Ineffective Assistance
Shaneyfelt argues that his trial counsel provided
constitutionally ineffective assistance by: (1) failing to object
when the prosecutor made an improper "golden rule" argument
during his closing argument; (2) failing to object when the
prosecutor improperly expressed his personal belief in
Shaneyfelt's guilt during his closing argument; and (3) failing
to sufficiently involve Shaneyfelt in the jury selection process.
An ineffective assistance of counsel claim requires both
deficient performance and prejudice. Sleeper v. Spencer. __ F.3d
, 2007 WL 4248494, at *5 (1st Cir. Dec. 5, 2007) (citing
Strickland v. Washington. 466 U.S. 668, 687 (1984)).
- 14 - To establish that counsel's performance was deficient, a
defendant must show that counsel's performance fell below an
objective standard of reasonableness under the circumstances.
Sleeper, 2007 WL 4248494, at *5. This review is highly
deferential, making every effort to "eliminate the distorting
effects of hindsight." I d . (quoting Strickland. 466 U.S. at
689). Counsel has "wide latitude in deciding how best to
represent a client," Yarborough v. Gentry. 540 U.S. 1, 5-6
(2003), and benefits from a strong presumption that he or she
rendered adequate assistance and exercised reasonable
professional judgment in making all significant decisions.
Strickland. 466 U.S. at 690.
To establish prejudice, the defendant must show that, but
for counsel's unprofessional error, there is a reasonable
probability that the result of the proceeding would have been
different. Sleeper. 2007 WL 4248494, at *5. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. I d . (citing Strickland. 466 U.S. at 694).
If counsel's actions did not prejudice the defendant, the
court may dispose of the ineffective assistance claim with a
prejudice analysis alone. Strickland. 466 U.S. at 697 ("If it is
- 15 - easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed"). Where appropriate, I do so
he r e .
1. Golden Rule Argument
Shaneyfelt argues that the prosecutor made an improper
"golden rule" argument during his closing, and that Shaneyfelt's
trial counsel provided ineffective assistance when he did not
object to the alleged "golden rule" argument. A "golden rule"
argument is one that improperly asks the jurors to put themselves
in the shoes of one of the parties. See United States v. Abreu,
952 F.2d 1458, 1471 (1st Cir. 1992); Walton v. City of
Manchester, 140 N.H. 403, 406 (1995). Such an argument is
inappropriate because it "improperly 'encourages the jury to
depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.'" United
States v. Moreno. 947 F.2d 7, 8 (1st Cir. 1991) (quoting
Forrestal v. Maqendantz, 848 F.2d 303, 309 (1st Cir. 1988)).
Shaneyfelt alleges that the prosecutor made a golden rule
argument at the beginning of his closing argument, when he
transitioned from talking about his memories of his basketball
- 16 - injury to the memories of the victims. The prosecutor urged the
jurors to "use your common sense and judgment when you're
thinking about that" and to consider "what are the things that
you hold and the memories that you take with you and that you can
recall?" when evaluating whether the gaps in the victims'
memories affected their credibility.
The state court reasonably decided that this was not an
improper golden rule argument because the prosecutor urged the
jurors to use their common sense understanding of how memory
operates in judging the credibility of the victims' testimony,
rather than asking them to depart from neutrality or identify
emotionally with the victims. See United States v. Kirvan. 997
F.2d 963, 964 (1st Cir. 1993) ("[i]n this situation, the
invitation is not an improper appeal to the jury to base its
decision on sympathy for the victim but rather a means of asking
the jury to reconstruct the situation in order to decide whether
a witness' testimony is plausible"); United States v. Abreu. 952
F.2d 1458, 1471 (1st Cir. 1992) (prosecutor did not invoke the
golden rule argument when he "simply called on the jury to employ
its ■'collective common sense' in evaluating the evidence and to
draw reasonable inferences therefrom"). Because, as the state
- 17 - court reasonably concluded, the prosecutor's argument was not an
improper golden rule argument, an objection by trial counsel
would have been futile. Thus, Shaneyfelt was not prejudiced by
counsel's performance and the state court acted reasonably in
dismissing his ineffective assistance claim.
2. Prosecutor's Personal Belief in Shaneyfelt's Guilt
Shaneyfelt next argues that his counsel was ineffective
because he failed to object to the prosecutor's improper
expression of personal belief in Shaneyfelt's guilt during his
closing.
The allegedly improper expression took place at the end of
the prosecutor's closing argument, when he urged:
I think lastly I'll just end with this statement. [Defense counsel] had indicated that to be scared about convicting an innocent man, and the thing is is [sic] that he's not innocent . . . . Don't have a fear of convicting this guy. He is guilty of child molestation. He molested those girls. He did it, and he's guilty. Return verdicts of guilty on all three counts, ladies and gentlemen, these girls did only what we could expect you to do. He did it.
The meaning of the statement is ambiguous. Although there
is some risk that the jury could interpret it as an expression of
personal belief in Shaneyfelt's guilt, the prosecutor did not
clearly frame it as a statement of belief by prefacing it with a
- 18 - statement such as "I feel," "I think," or "I believe." Based on
this ambiguity, the state court found that the prosecutor's
statement "can be most reasonably interpreted as being what the
evidence showed, at least in the mind of the prosecutor. It is
no different than defense counsel suggested in his closing that
the defendant was innocent and should be acquitted." N.H. Super.
C t . Dec. 14, 2005 Order, at 5. This was not an unreasonable
finding to make. See United States v. Smith. 982 F.2d 681, 684-
85 (1st Cir. 1993) ("The prejudice from the errant statements in
the prosecutor's closing argument was mitigated somewhat by their
context and ambiguity . . . . Viewed in context, these ambiguous
statements were not so egregious that they seriously affected the
fairness, integrity, or public reputation of judicial
proceedings" (internal quotations omitted)). Moreover, even if
the trial court might have sustained an objection to the
prosecutor's statement, it is not ineffective assistance for
counsel to refrain from raising every technically possible
objection. See Knight v. Spencer. 447 F.3d 6, 16 (1st Cir. 2006)
("[Defense] counsel could not have rendered ineffective
assistance in failing to object to alleged errors of state
evidentiary law that were either non-prejudicial or
- 19 - nonexistent."). Indeed, counsel's decision to refrain from
objecting may well have been a sound strategic decision in the
particular circumstances. When the prosecutor reached this
section of his closing, defense counsel had already interrupted
the prosecutor's closing statement once to object to the
prosecutor's discussion of unindicted allegations of digital
penetration -- which caused a bench conference to take place in
the middle of the prosecutor's closing. Raising another mid
argument objection, particularly if the objection were overruled,
could well have hurt Shaneyfelt in the eyes of the jury more than
any minimal help it might have provided.3
3. Jury Selection
Shaneyfelt's last argument is that his trial counsel
provided ineffective assistance when he denied Shaneyfelt the
opportunity to participate in jury selection. Shaneyfelt avers
that he disagreed with some of counsel's decisions during voir
3 The state court found that the statement was an isolated remark in the context of the closing as a whole, and any possible prejudicial effect was mitigated by the court's multiple admonitions to the jury that the statements made by lawyers in their openings and closings are not evidence. N.H. Super. C t . Dec. 14, 2005 Order, at 5. This was not an unreasonable determination of the facts, and supports the notion that the prosecutor's statement caused no real prejudice to Shaneyfelt.
- 20 - dire, but counsel told him to "be quiet" after Shaneyfelt
repeatedly insisted that counsel challenge a particular juror.
Shaneyfelt has not made any specific allegations suggesting that
any of the jurors should have been dismissed for cause. Instead,
he apparently rests his ineffective assistance claim on the idea
that counsel should have followed Shaneyfelt's suggestions
regarding how to exercise his peremptory challenges.
The state court held, " [w]ithout any specific information to
suggest that this particular juror was somehow biased against the
defendant, the Court cannot conclude that defense counsel's
handling of the matter was prejudicial to the defendant." N.H.
Super. C t . Dec. 14, 2005 Order, at 5. This was a reasonable
application of the law, particularly since the record remains
just as undeveloped now as it was before the state court.
Although a client's input may be helpful, an attorney's decisions
on how to exercise peremptory challenges are core strategic
decisions, informed by the attorney's expertise and experience,
and such decisions deserve considerable deference. See, e.g..
Gardner v. Ozmint, __ F.3d __, 2007 WL 4414821, at *4 (4th Cir.
Dec. 19, 2007) (finding that counsel's decision not to
peremptorily challenge a juror who admitted she was not "100
- 21 - percent" open-minded was not ineffective); Cummings v. Sirmons,
506 F.3d 1211, 1228 (10th Cir. 2007) (finding that counsel's voir
dire was not ineffective where defendant "did not identify what
questions his trial counsel allegedly should have asked of the
potential jurors, nor did he identify which jurors should
allegedly have been stricken from the panel"); Keith v. Mitchell.
455 F.3d 662, 676-77 (6th Cir. 2006) (finding that counsel's voir
dire was not ineffective because counsel's unusual focus on
jurors' religious beliefs was part of an objectively reasonable
strategy and his failure to probe the jury's willingness to
sentence a capital defendant to something less than death did not
prejudice the defendant), cert, denied. 127 S. C t . 1881 (2007);
Hughes v. United States. 258 F.3d 453, 457 (6th Cir. 2001)
("Counsel is . . . accorded particular deference when conducting
voir dire. An attorney's actions during voir dire are considered
to be matters of trial strategy."); United States v. Ouintero-
Barraza. 78 F.3d 1344, 1349 (9th Cir. 1995) (deferring to
counsel's strategic decision not to strike a potential juror who
believed that "one is guilty before proven innocent" and stated
that it would be "difficult" for him to be impartial).
- 22 - Shaneyfelt has failed to demonstrate that the state court's
deference to trial counsel's judgment was contrary to or an
unreasonable application of clearly-established federal law.
Moreover, Shaneyfelt has failed to show how counsel's decision
not to follow his advice was prejudicial. See Davis v. Woodford.
384 F.3d 628, 643 (9th Cir. 2004) ('■'Establishing Strickland
prejudice in the context of juror selection requires a showing
that, as a result of trial counsel's failure to exercise
peremptory challenges, the jury panel contained at least one
juror who was biased").
IV. CONCLUSION
For the foregoing reasons, the government's motion for
summary judgment (Doc. No. 16) is granted. The clerk is directed
to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge January 28, 2008
cc: Harold Shaneyfelt, Jr., pro se Susan P. McGinnis, Esq.
- 23 -