Zachary Kelsey v. Tim Garrett

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZACHARY KELSEY, No. 22-15557

Petitioner-Appellant, D.C. No. 3:18-cv-00174-MMD-CLB v.

TIM GARRETT; et al., MEMORANDUM*

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted December 9, 2022 Opinion Filed May 24, 2023 Opinion Withdrawn and Resubmitted, September 19, 2023 San Francisco, California

Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.

A jury convicted Petitioner Zachary Kelsey of second-degree murder. He

appeals the denial of his habeas corpus petition, brought pursuant to 28 U.S.C.

§ 2254, alleging ineffective assistance of trial counsel. Under § 2254(d), our

review is “doubly deferential,” requiring deference under both the Antiterrorism

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and Effective Death Penalty Act and Strickland v. Washington, 466 U.S. 668

(1984). Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The state court’s

decision to affirm Petitioner’s conviction and sentence was not “contrary to, [nor

did it involve] an unreasonable application of, clearly established Federal law.” 28

U.S.C. § 2254(d)(1). We therefore affirm.

1. The district court correctly denied Petitioner’s claim pertaining to his trial

counsel’s waiver of closing argument. Counsel testified that he waived closing

argument because the junior prosecutor presented a lackluster closing. Counsel

also testified that, by waiving closing argument, he prevented the senior

prosecutor, who was a vigorous advocate, from giving a compelling rebuttal. It

was reasonable for the state court to decide that this strategy did not make

counsel’s performance deficient under Strickland. In addition, the state court could

reasonably have decided that Petitioner’s counsel did not act deficiently in

agreeing to a proposal from the codefendants’ lawyers to waive closing argument

for all defendants. One of the codefendants’ lawyers had called witnesses who

attacked Petitioner’s credibility and who asserted that Petitioner had committed the

most brutal part of the beating that resulted in the victim’s death. In the

circumstances, there was reason for Petitioner’s counsel not to give closing

argument time to parties whose positions were hostile to his client’s interests. See

Bell v. Cone, 535 U.S. 685, 701–02 (2002) (holding that a state court reasonably

2 concluded that counsel in a death penalty case did not violate Strickland by

waiving closing argument); see also Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)

(per curiam) (holding that, although “[t]he right to effective assistance [of counsel]

extends to closing arguments,” counsel is entitled to “wide latitude in deciding how

best to represent a client”).

The state court also reasonably concluded that Petitioner failed to

demonstrate prejudice. Trial counsel gave an effective opening statement and

presented a robust defense through Petitioner’s testimony and through examination

of other witnesses. See Hovey v. Ayers, 458 F.3d 892, 906–07 (9th Cir. 2006)

(“Where counsel’s failure to oppose the prosecution occurs only in isolated points

during the trial, we will not presume prejudice.”). The state court reasonably

concluded that Petitioner did not show a “substantial” likelihood of a different

result, Harrington v. Richter, 562 U.S. 86, 112 (2011), had his counsel given a

closing argument.

2. The district court correctly denied Petitioner’s claim pertaining to his

counsel’s decision not to consult a forensic pathologist. Petitioner delivered two

blows to the victim’s head, knocking him down, and kneed him in the head twice

as he fell. Two prosecution experts concluded that Petitioner’s actions could have

contributed directly to the victim’s death. The third expert who, Petitioner argues,

should have been consulted, had a view that was more favorable to Petitioner’s

3 case. But it was not unreasonable for the state court to conclude that “[Petitioner]

had failed to demonstrate a reasonable probability of a different outcome” had this

expert testified. The third expert acknowledged that Petitioner’s actions could

have been a substantial factor in the victim’s death, testimony that would not have

absolved Petitioner of criminal liability. See Etcheverry v. State, 821 P.2d 350,

351 (Nev. 1991) (per curiam) (“[A]n intervening cause must be a superseding

cause, or the sole cause of the injury in order to completely excuse the prior act.”

(emphasis omitted)). For those reasons, the state court reasonably applied

Strickland in finding no prejudice.

AFFIRMED.