Gonzalez v. Knowles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTONIO GONZALEZ,  No. 06-17054
Petitioner-Appellant,
v.  D.C. No.
CV-04-00967-PJH
MIKE KNOWLES, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted
December 3, 2007—San Francisco, California

Filed February 6, 2008

Before: Robert E. Cowen,* Michael Daly Hawkins and
N. Randy Smith, Circuit Judges.

Opinion by Judge Cowen;
Dissent by Judge Hawkins

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

1725
1728 GONZALEZ v. KNOWLES

COUNSEL

Richard Such, Esq., Palo Alto, California, for the appellant.

Pamela K. Critchfield, Deputy Attorney General, San Fran-
cisco, California, for the appellee.
 GONZALEZ v. KNOWLES 1729
OPINION

COWEN, Circuit Judge:

Appellant Antonio Gonzalez was convicted in California
state court of the sexual molestation of a minor. He appeals
from the District Court’s denial of his 28 U.S.C. § 2254
habeas petition, raising claims of due process and ineffective
assistance of counsel. Because none of these claims entitle
Gonzalez to any relief, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

In July 1998, Gonzalez was convicted of one count of
being a “resident child molester,”1 four counts of child molesta-
tion,2 and two counts of indecent exposure. At the time, Gon-
zalez resided with his brother’s family. His brother had three
children, Bernice (then aged 13), Zulema (10) and Guillermo
(8).

On April 3, 1998, the children came home from school
early. In their parents’ bedroom, they found Gonzalez’s cloth-
ing and some of Bernice’s and Zulema’s bras and panties
strewn on the floor. Some of the panties had been stretched
and torn. The children were scared and ran out of the house.
When they returned a few minutes later, the clothing and
undergarments were gone. Soon thereafter, they discovered
1
Conviction of this charge requires proof that one resides in the same
home as the minor child and, over a period of time in excess of three
months in duration, commits three or more acts of “lewd or lascivious
conduct” with a child under the age of 14. Cal. Penal Code § 288.5(a). A
touching of the minor’s body suffices as a predicate act under this statute
if it is willfully committed “with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of [the actor].” Cal. Penal
Code § 288(a).
2
The individual child molestation counts were also premised on Califor-
nia Penal Code § 288(a).
1730 GONZALEZ v. KNOWLES
Gonzalez, fully clothed, in a closet in the garage. While the
sisters were outside of the garage, Gonzalez exposed his penis
to Guillermo and asked him to touch it. Guillermo refused.

The sisters then returned and accused Gonzalez of ripping
their undergarments. Gonzalez denied doing so, but offered
Bernice $20 if she would not tell her parents about the inci-
dent. Bernice told him to leave, but he asked her to get his hat
from inside the house. She went to do so; Zulema was left
alone with Gonzalez. Zulema again asked about the under-
wear. Gonzalez responded by exposing himself to her. He
then grabbed her hand and pulled it towards his penis. Zulema
screamed, pulled her hand away, and ran out of the garage.
She immediately told Bernice what had happened. The chil-
dren told their parents about the incident later that day.

At trial, Zulema testified that Gonzalez had touched her
inappropriately on five or so occasions in the three years pre-
ceding the April 1998 incident. In particular, she claimed that
he had twice grabbed her and stroked her breasts, once
touched her in the groin area, and twice patted her on the but-
tocks. Each time, Zulema said that she did not like the touch-
ing and immediately removed Gonzalez’s hands from her
body and/or told him not to touch her in that way. However,
she did not tell her parents about these incidents because she
was afraid her mother would hit her.

The trial court found that the prior touchings of Zulema’s
breasts and groin were committed with the requisite lewd
intent, but that the pats of the buttocks were not. Gonzalez
was convicted of all counts following an one-day bench trial.
Because he had a prior conviction for assault with a deadly
weapon, the judge doubled Gonzalez’s sentence, see Cal.
Penal Code § 1170.12(c)(1), added a five-year enhancement,
see Cal. Penal Code § 667(a)(1), and imposed a total sentence
of 18 years and 4 months.

Richard Such, an attorney with the California First District
Appellate Project, was appointed to represent Gonzalez for
 GONZALEZ v. KNOWLES 1731
purposes of his appeal. The state appeals court affirmed Gon-
zalez’s conviction, but reversed the finding that his prior con-
viction counted as a “strike” requiring the doubling of his
sentence and the five-year enhancement. The California
Supreme Court denied review.

On remand, Gonzalez sought to have Such appointed to
represent him, but the trial court denied the request and
appointed him a private defender. Following this denial, Such
wrote a lengthy letter to Armando Garcia, new counsel, sum-
marizing the results of his investigation into Gonzalez’s back-
ground. Such informed Garcia that members of Gonzalez’s
family were sympathetic to his case and were willing to tes-
tify, and advised Garcia to obtain a psychiatric evaluation for
Gonzalez. Such indicated that none of Gonzalez’s family
members thought he was mentally ill, but because Gonzalez
had apparently sustained a “blow to the head” at some
unknown time in the past, Such posited there might be “a pos-
sibility of brain damage.” ER at 123. Garcia did not call any
witnesses at sentencing, nor did he have Gonzalez evaluated.

At re-sentencing, Garcia argued that Gonzalez did not have
any prior “strikes,”3 had a history of alcohol abuse, and the
fact that Gonzalez was under the influence when he commit-
ted the acts in question all mitigated his culpability. The court
found these arguments unavailing and sentenced Gonzalez to
16 years on the “resident child molester” count. The sentences
on the remaining counts were stayed.

Gonzalez again appealed. The state appellate court vacated
his conviction as to the individual counts of child molestation,
reasoning that Gonzalez could not be convicted of the “resi-
dent child molester” charge and of the separate instances of
3
Although the state did not pursue retrial on counting Gonzalez’s prior
assault conviction as a “strike” for sentencing purposes, it is undisputed
that Gonzalez nevertheless had a number of prior convictions, including
a misdemeanor weapons charge, and two instances of indecent exposure.
1732 GONZALEZ v. KNOWLES
molestation based on the same conduct. However, because the
sentences on the vacated counts had been stayed by the trial
court, the California Court of Appeal deemed re-sentencing
unnecessary and affirmed the sentence. The California
Supreme Court again denied review.

Gonzalez unsuccessfully petitioned for post-conviction
relief in the California courts. He then sought federal habeas
relief, but the District Court denied the petition on the merits.
Gonzalez timely appealed, and the District Court granted a
certificate of appealability on four issues: (1) sufficiency of
the evidence; (2) violation of due process arising out of the
denial of the motion to appoint desired counsel at re-
sentencing; (3) ineffective assistance of counsel; and (4) due
process violation based on reconsideration of aggravating fac-
tors at re-sentencing.

II. DISCUSSION

We exercise jurisdiction pursuant to 28 U.S.C. § 2253. Our
review of a district court’s denial of a § 2254 petition is de
novo. Schell v. Witek, 218 F.3d 1017, 1022 (9th Cir. 2000) (en
banc). Federal habeas relief may be granted on a claim previ-
ously adjudicated by the state court only if the adjudication
“was contrary to” or “involved an unreasonable application of
clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The
parties do not dispute that all of Gonzalez’s claims are
exhausted and ripe for our review. We address each claim in
turn.

A. Sufficiency of the Evidence

Gonzalez claims that there was insufficient evidence that he
committed the prior touchings of Zulema with the requisite
lewd intent. The California Court of Appeal rejected this
claim on the merits. The standard of review on a sufficiency
of the evidence claim is whether, “after viewing the evidence
in the light most favorable to the prosecution, any rational
 GONZALEZ v. KNOWLES 1733
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original); Schell, 218 F.3d
at 1023. All conflicting inferences are presumed to have been
resolved in favor of the prosecution. Schell, 218 F.3d at 1023.

[1] The state trial court did not violate Gonzalez’s due pro-
cess rights by inferring lewd intent for the prior touchings
from the April 1998 incident. See Windham v. Merkle, 163
F.3d 1092, 1103 (9th Cir. 1998) (“admission of ‘other acts’
evidence . . . will violate due process only when ‘there are no
permissible inferences the jury may draw from the evi-
dence’ ”) (emphasis in original) (internal citation omitted).
Errors of state evidentiary law do not entitle one to federal
habeas relief unless the alleged error “so fatally infected the
proceedings as to render them fundamentally unfair.” Jammal
v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Here, it
is not clear that consideration of the 1998 incident was error
at all, since the California rules of evidence expressly allow
the admission of the defendant’s other bad acts for purposes
of proving intent or motive, as occurred here. Cal. Evid. Code
§ 1101(b).

[2] The statute at issue requires acting with the “intent of
arousing, appealing to, or gratifying the lust, passions, or sex-
ual desires of the defendant or the child.” Cal. Penal Code
§ 288(a). Gonzalez contends that because the alleged touch-
ings of Zulema’s chest and groin occurred during “a wrestling
type of play,” Appellant’s Brief at 22, and because Zulema
did not immediately report them to her parents, the incidents
were wholly innocent and the requisite intent was lacking.
The state court rejected this claim, finding that Zulema’s testi-
mony that she immediately recognized the touchings as
improper, struggled to break free of Gonzalez, and asked him
not to touch her that way was sufficient to sustain Gonzalez’s
conviction. We will not disturb this well-reasoned conclusion,
as we hold that the state court’s rejection of Gonzalez’s suffi-
ciency of the evidence claim was not contrary to, nor involved
1734 GONZALEZ v. KNOWLES
an unreasonable application of, controlling Supreme Court
precedent.

B. Appointment of Counsel

Next, Gonzalez argues that the trial court’s refusal to
appoint him his counsel of choice on re-sentencing warrants
habeas relief. In particular, he contends that he had a right to
consideration of his preference for counsel and that the trial
court violated his due process rights by failing to exercise its
discretion in appointing him the counsel of his choice.

Initially, as the state appellate court rejected this claim
based on its conclusion that the denial of the motion was not
an abuse of discretion under California law, the claim is
plainly outside our purview. See Peltier v. Wright, 15 F.3d
860, 862 (9th Cir. 1994) (federal habeas court may not pass
on state court’s resolution of state law question unless it is
apparent that the resolution “is an obvious subterfuge to evade
the consideration of a federal issue”). It is axiomatic that only
constitutional claims are cognizable on federal habeas. 28
U.S.C. § 2254(a); Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(“federal habeas corpus relief does not lie for errors of state
law”). Accordingly, Gonzalez’s appointment of counsel claim
is simply not cognizable on federal habeas unless the state
court’s discretionary appointment ran afoul of settled consti-
tutional principles. See Schell, 218 F.3d at 1025 (noting that
“[a] particular abuse of discretion by a state court may amount
also to a violation of the Constitution, but not every state
court abuse of discretion has the same effect”); 28 U.S.C.
§ 2254(a). It did not.

[3] The Sixth Amendment guarantees criminal defendants
the right to effective representation, but indigent defendants
do not have a constitutional right to be represented by their
counsel of choice. Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 624 (1989). As such, Gonzalez’s reli-
ance on choice-of-counsel jurisprudence is entirely unavail-
 GONZALEZ v. KNOWLES 1735
ing. Gonzalez concedes this, but nevertheless contends that
his preference to be represented by an attorney with whom he
had an established relationship was entitled to consideration.
However, the Sixth Amendment encompasses no guarantee of
a “meaningful attorney-client relationship.” Morris v. Slappy,
461 U.S. 1, 13 (1983) (internal quotation marks omitted).
Therefore, since Gonzalez was appointed an attorney who
was at least facially competent, no Sixth Amendment viola-
tion occurred as a result of the court’s appointment of some-
one other than Gonzalez’s first-choice counsel.4

[4] Gonzalez’s due process argument also fails. Absent
allegations that Gonzalez’s appointed counsel had an irrecon-
cilable conflict sufficient to arise to a per se denial of counsel,
see Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), the
standards applicable in substitute counsel cases are inapplica-
ble here. Even if they did apply, the trial court’s actions, as
detailed infra, in adjudicating Gonzalez’s appointment of
counsel request were nevertheless entirely proper. See King v.
Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (no constitu-
tional violation where court undertook brief inquiry into
appointment of counsel request but denied it); cf. Hudson, 686
F.2d at 829 (failure to undertake any inquiry into reasons for
defendant’s motion to replace counsel may be constitutionally
impermissible). Furthermore, contrary to Gonzalez’s asser-
4
Of course, if appointed counsel’s assistance proved to be constitution-
ally deficient and prejudicial, Gonzalez may be entitled to habeas relief.
But, this is a distinct inquiry, see discussion, infra Section II.C, which
should not be conflated with the instant issue of whether the initial
appointment of counsel passes constitutional muster. Hindsight allegations
of counsel’s subsequent deficient performance should not be used to color
the threshold question before us.
Additionally, we cannot agree with the dissent’s claim that “the risk of
ineffective assistance could have been easily removed had the trial court
simply appointed Such to represent Gonzalez at re-sentencing.” The
appointment of a defendant’s desired counsel who is familiar with the
facts of the case is certainly not a panacean assurance that the counsel’s
representation will be constitutionally adequate.
1736 GONZALEZ v. KNOWLES
tion, the trial court did not fail to “truly exercise[ ] its discre-
tion” in denying his request to appoint Such as re-sentencing
counsel, Appellant’s Brief, at 34; it merely exercised its dis-
cretion in a manner contrary to Gonzalez’s wishes. Cf. Schell,
218 F.3d at 1025 n.7 (concluding state court failed to exercise
its discretion where it ignored petitioner’s motion for appoint-
ment of counsel and never ruled on the request).

[5] On remand, Such sought to be appointed as Gonzalez’s
counsel and filed a motion to this effect. After reviewing the
motion, the trial court held a hearing on the matter, and
allowed Such to be heard. Gonzalez, assisted by an inter-
preter, was also present at the proceeding, during which the
following exchange took place:

THE COURT: Mr. [Such], I have reviewed your ex-
parte application. And, other than the fact of the
defendant’s desire to have you represent him
because of the relationship that has developed, is
there anything about this, what would seem to me to
be a fairly straightforward court trial on the prior
[conviction], that would indicate we ought to take
this rather unusual step?

MR. [SUCH]: Uh-huh. Well, there’s my familiarity
with the issues that concern the sufficiency of the
evidence of that prior conviction, and also the valid-
ity of it. In addition to that, I won’t have to go into
this, but in the courts of appeal we raised both on
appeal, and a habeas corpus issue of the competence
of Mr. Gonzalez’s previous attorney. So I think
that’s an additional reason why some other attorney
should be appointed.

THE COURT: Okay. And, as you may or may not
know, when matters are remanded under circum-
stances like this, if the private defender is appointed,
it is by no means certain that it would be assigned to
 GONZALEZ v. KNOWLES 1737
the same attorney. I think it’s very frequently a dif-
ferent attorney is assigned. And in a case like this
where there is a potential issue of ineffective assis-
tance, I would strongly suspect that they would go
out of their way to assign it to someone else.5 So,
submitted?

MR. [SUCH]: Yeah.

...

THE COURT: All right. Then I’m going to deny the
request. I’m satisfied that the defendant can be com-
petently and appropriately represented by the private
defender program. I will at this time appoint the pri-
vate defender . . .

ER at 106-08. It is clear from this record that the trial court
duly considered Gonzalez’s appointment request but never-
theless denied it because the judge felt that no great advantage
would have been gained by having Such as counsel for what
was perceived to be a straightforward proceeding, and not, as
the dissent posits, merely because the appointment would be
a departure from the judge’s usual practice. Under these cir-
cumstances, we cannot say that the denial violated Gonzalez’s
constitutional rights.

[6] It warrants emphasis that it is not our role on federal
habeas review to pass upon the wisdom of a state court’s dis-
cretionary decisions. It is of no moment that we may disagree
with the court’s reasons or that we may have made different
choices ourselves; “our only concern when reviewing the con-
stitutionality of a state-court conviction is whether the peti-
tioner is ‘in custody in violation of the Constitution or laws
or treaties of the United States.’ ” Schell, 218 F.3d at 1025
(quoting 28 U.S.C. § 2254(a)) (emphasis in original). Indeed,
5
A different private defender was assigned on remand.
1738 GONZALEZ v. KNOWLES
we are wholly without authority to grant habeas relief unless
those state court actions violated the petitioner’s constitu-
tional rights, and unless the state appellate court’s rejection of
the claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). In this case, the trial
court’s actions were reasoned and deliberate, and the state
appellate court’s decision did not run afoul of the Constitu-
tion. We are thus precluded from granting Gonzalez relief.

C. Ineffective Assistance of Counsel

Finally, Gonzalez contends that his appointed private
defender was constitutionally ineffective. Ineffective assis-
tance of counsel claims are governed by the two-prong analy-
sis articulated in Strickland v. Washington, 466 U.S. 668
(1984). Under the first prong, a habeas petitioner must dem-
onstrate that counsel’s representation, considering all the cir-
cumstances, fell below an objective standard of
reasonableness. Id. at 687-89. To satisfy the second prong,
petitioner must establish that he was also prejudiced by coun-
sel’s substandard performance. Id. at 687. One is prejudiced
if there is a reasonable probability that but-for counsel’s
objectively unreasonable performance, the outcome of the
proceeding would have been different. Id. at 694.

Here, the California Court of Appeal summarily denied
Gonzalez’s habeas petition, and the California Supreme Court
denied review. In such circumstances, we must conduct an
independent review of Gonzalez’s claims to determine
whether the state court’s denial passes § 2254(d)(1) muster.
Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002).

At the outset, even assuming Gonzalez exercised sufficient
diligence in seeking to develop the factual basis for his Sixth
Amendment claims in state court, no evidentiary hearing is
warranted under the circumstances. All of Gonzalez’s claims
 GONZALEZ v. KNOWLES 1739
are grounded in speculation; he has not presented, nor has he
even alleged, the existence of any quantum of mitigating evi-
dence upon which we can conclude entitle him to an evidenti-
ary hearing. Cf., e.g., Pizzuto v. Arave, 280 F.3d 949, 990 (9th
Cir. 2002) (“based on the state court record and the affidavits
submitted by [petitioner], he has raised a colorable claim” jus-
tifying an evidentiary hearing); Siripongs v. Calderon, 35
F.3d 1308, 1314 (9th Cir. 1994) (relying on “forensic evi-
dence . . . expert affidavits, and [ ] deposition of trial counsel”
submitted to the court to conclude that petitioner had made
out a colorable claim). Here, the simple fact is that Gonzalez’s
allegations of ineffective assistance of counsel, even if
proven, would not arise to prejudice sufficient to undermine
confidence in the sentencing result. Therefore, the District
Court did not abuse its discretion in failing to conduct an evi-
dentiary hearing. Karis v. Calderon, 283 F.3d 1117, 1127 (9th
Cir. 2002).

1. Failure to investigate and to call witnesses

Gonzalez argues that his private defender was ineffective at
re-sentencing for failing to investigate potentially mitigating
evidence of mental illness, and for not calling family mem-
bers to testify on his behalf.

[7] Appellant’s instant claims fail on both Strickland
prongs. First, Garcia’s alleged failures to investigate and to
call witnesses were not objectively unreasonable. Absent any
objective indication that Gonzalez suffered from any mental
illness, Garcia cannot be deemed ineffective for failing to pur-
sue this avenue of mitigation where Gonzalez’s mental illness
seemed unlikely. See Wilson v. Henry, 185 F.3d 986, 990 (9th
Cir. 1999) (that counsel knew defendant had been beaten,
without more, did not render decision not to investigate possi-
bility of psychiatric defense unreasonable). Furthermore, Gar-
cia was aware, as a result of Such’s letter, of the substance of
the family members’ testimony, but simply opted not to call
them. This “reasoned tactical choice” did not constitute defi-
1740 GONZALEZ v. KNOWLES
cient performance. See Gerlaugh v. Stewart, 129 F.3d 1027,
1033 (9th Cir. 1997) (attorney not ineffective for failing to
call character witnesses where testimony had limited value in
establishing mitigation); but cf. Williams v. Taylor, 529 U.S.
362, 396 (2000) (prejudicial wholesale failure to investigate
may violate Sixth Amendment). That Such would have called
the witnesses does not render Garcia’s failure to do so objec-
tively unreasonable under Strickland. Bashor v. Risley, 730
F.2d 1228, 1241 (9th Cir. 1984) (counsel’s informed deci-
sions do not run afoul of the Sixth Amendment even if in
hindsight a better strategy was available).

[8] Second, even if Garcia’s performance was constitution-
ally deficient, Gonzalez cannot demonstrate prejudice. Here,
Garcia presented a number of mitigating factors to the judge
at re-sentencing — alcohol abuse, no prior “strikes”, de
minimis nature of the charged conduct, but the court neverthe-
less imposed an upper-term sentence of 16 years. In doing so,
the judge cited Gonzalez’s “prior convictions, his poor perfor-
mance on probation in the past, and the evidence of planning
in the current case.” ER at 143. The testimony of sympathetic
family members would not have impacted any of these objec-
tively verifiable factors enumerated by the trial court. Based
on this record, we cannot say that the omission of generally
sympathetic testimony by some6 family members sufficiently
“undermine[s] confidence in the [sentencing] outcome.”
Strickland, 466 U.S. at 694. As to the failure to investigate
6
We find it significant to note here that Gonzalez’s suggestion that his
family members were all on his side, see Appellant’s Brief, at 41 (family
could have testified “they did not fear for their children, and that they
would welcome him back in the family group”), is belied by other infor-
mation found in his own submissions. In particular, Such stated in a decla-
ration to the court that Gonzalez’s sister-in-law, Zulema’s mother,
apparently did not intend to fully welcome Gonzalez back into her fami-
ly’s life. ER at 116 (“I also spoke to Mariana Gamino, the mother of the
three alleged victims in the case . . . [h]er main concern seemed to be that,
if [Gonzalez] were released, he not be allowed to move back into her
house”) (emphasis added).
 GONZALEZ v. KNOWLES 1741
mental health mitigation, Gonzalez does not contend that he
actually suffered from a mental illness; he merely argues that
if tests had been done, and if they had shown evidence of
some brain damage or trauma, it might have resulted in a
lower sentence. Such speculation is plainly insufficient to
establish prejudice. Grisby v. Blodgett, 130 F.3d 365, 373 (9th
Cir. 1997).

2. Failure to object

Appellant further contends that Garcia was ineffective for
failing to object to the trial court’s imposition of an upper-
term sentence at re-sentencing. Because the court had previ-
ously imposed a lower-end sentence, Gonzalez claims that res
judicata precluded the court from deviating from this determi-
nation. Gonzalez argues that Garcia’s failure to object to this
due process error violated Strickland. This claim finds no sup-
port in the law.

At his initial sentencing, the trial court determined to be a
mitigating factor that Gonzalez’s conduct was less serious
than the typical molestation case. However, because the court
concluded that Gonzalez’s prior assault conviction was a
“strike” under California law (thereby requiring doubling of
the sentence plus a five-year enhancement), the judge
imposed a low-end sentence of 6 years for the molestation
charge, for a final sentence of 18-plus years.

Upon remand, Gonzalez no longer faced a prior “strike.”
After affirming its prior conclusion that the severity of the
charged conduct was mitigating, the judge explained his rea-
son for deviating from the lower term previously imposed:

When initially sentencing [Gonzalez], I found that a
mitigated term was appropriate, because as a second
strike case, a double midterm [sentence] served at 80
percent would produce virtually a life sentence.7 And
7
Gonzalez was 47 years old at the time of the re-sentencing.
1742 GONZALEZ v. KNOWLES
I took that factor into account when imposing the
low term. That situation is no longer the case . . . I
find that the aggravating circumstances now out-
weigh those in mitigation. And for that reason, I’m
imposing the upper term.

ER at 143-44. The court sentenced Appellant to 16 years.

[9] Contrary to Gonzalez’s contention, the trial court’s
imposition of a higher base term on re-sentencing did not vio-
late his due process rights. This is essentially a Double Jeop-
ardy claim, but the Supreme Court’s “decisions in the
sentencing area clearly establish that a sentence does not have
the qualities of constitutional finality that attend an acquittal.”
United States v. DiFrancesco, 449 U.S. 117, 134 (1980).
Even if res judicata had any relevance in the sentencing con-
text, it would not apply here because the appellate court
vacated Gonzalez’s prior sentence when it remanded the mat-
ter for retrial and re-sentencing. See, e.g., United States v.
Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987) (defendant
had “no legitimate expectation of finality in the original sen-
tence when he has placed those sentences in issue by direct
appeal and has not completed serving a valid sentence”).

[10] There is no dispute that the aggregate sentence Gonza-
lez received on remand was less than that which was imposed
initially. Nor is there any allegation that the trial court was
impermissibly motivated by vindictiveness at the re-
sentencing proceeding. Cf. Chaffin v. Stynchcombe, 412 U.S.
17, 24-25 (1973) (due process violated where court imposes
harsher sentence at re-sentencing as punishment for defen-
dant’s successful appeal). Accordingly, there was no funda-
mental unfairness in allowing the trial court, on remand, to
revisit all the components of Gonzalez’s sentence in fashion-
ing an appropriate judgment. See United States v. Jenkins, 884
F.2d 433, 441 (9th Cir. 1989) (even where defendant only
challenged the restitution portion of his sentence, district
court may reconsider other aspects of the entire “sentencing
 GONZALEZ v. KNOWLES 1743
package” at re-sentencing). Since the trial court’s re-balancing
of the mitigating and aggravating factors was not error, Gon-
zalez’s counsel cannot be deemed ineffective for failing to
raise this meritless claim. See Wildman v. Johnson, 261 F.3d
832, 840 (9th Cir. 2001). Therefore, the California state
courts’ rejection of Gonzalez’s ineffective assistance of coun-
sel claims was not contrary to, or an unreasonable application
of, controlling Supreme Court precedent.

III. CONCLUSION

For the reasons set forth above, we affirm the denial of the
petition.

HAWKINS, Circuit Judge, dissenting:

I respectfully dissent. At bottom, this habeas matter is
about the process by which indigent defendants are provided
counsel. To begin with, it is not easy work. Clients, given a
lawyer selected by the same government accusing them, are
often suspicious that their case will be given short shrift.
Added to the mix here were charges of the most serious sort
(molestation of his own brother’s children in their home
where he was a guest) levied against an individual with a
prior criminal history. Convicted at trial and having his sen-
tence doubled based on a prior conviction, Gonzalez had the
good fortune of receiving the court-appointed assistance of
Richard Such (“Such”).

Such was able to convince the state appellate court that
Gonzalez’s sentence had been improperly doubled and the
matter was remanded to district court for re-sentencing. At
this point, Gonzalez asked the state trial court to appoint Such
to represent him at re-sentencing. Through written documents
and verified statements, Gonzalez established that Such had
earned his confidence, knew the case well, and was willing to
1744 GONZALEZ v. KNOWLES
work at the hourly rate the county typically paid appointed
counsel. Additionally, Such had already done some work on
sentencing matters. The state court refused, essentially rea-
soning that appointment of Such was “not the way we do
things around here,”1 and instead appointed Armando Garcia
(“Garcia”), a local attorney utterly unfamiliar with Gonzalez’s
case.

Rather than simply walking away from Gonzalez’s case,
Such proceeded to write Garcia a lengthy letter, conveying
information highly relevant to re-sentencing, including,
importantly, that Gonzalez’s family members were sympa-
thetic to Gonzalez and trusted him around their children, and
that the victim’s mother might be willing to testify that a
prison sentence was unnecessary. Such also explained that a
mental health evaluation might demonstrate that Gonzalez
would be unlikely to re-offend.

What did Garcia do with this information? Absolutely noth-
ing. Garcia made no attempt to contact the family, to inquire
into Gonzalez’s mental history, or to have his client evaluated
by mental health experts. At the re-sentencing, Garcia called
no witnesses, only arguing that Gonzalez had a history of
alcohol abuse and may have been intoxicated at the time of
the acts. Even though the court had previously given Gonza-
lez 18 years and 5 months based on a sentencing enhancement
no longer available, Gonzalez was given 16 years.

In his habeas petition, as he had in his state post-conviction
petition, Gonzalez sought an evidentiary hearing on his claim
1
The majority claims that local routine was not the only reason for
refusing to appoint Such. In fact, the only other reason given was that this
was a “straightforward” case. If by “straightforward” the trial court meant
a sentencing proceeding in which an appointed defense attorney simply
goes through the motions, it hardly justifies refusing to appoint an experi-
enced, previously successful lawyer who not only had Gonzalez’s confi-
dence, but had also begun a serious effort to provide fully effective
sentencing representation.
 GONZALEZ v. KNOWLES 1745
that Garcia had provided him ineffective assistance of coun-
sel. The district court, like the state court, refused to conduct
an evidentiary hearing. That refusal is where I part company
with my colleagues in the majority. By my lights, the district
court abused its discretion in refusing to conduct an evidenti-
ary hearing. Because he requested and was denied a hearing
in state court proceedings, Gonzalez cannot be faulted for
“fail[ing] to develop the factual basis of [his] claim in State
court.” Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir.
2005) (citing 28 U.S.C. § 2254(e)(2)). “[W]here a petitioner
raises a colorable claim of ineffective assistance, and where
there has not been a state or federal hearing on this claim, we
must remand to the district court for an evidentiary hearing.”
Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004)
(quoting Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir.
1990)). Gonzalez has certainly raised a “colorable claim” of
ineffective assistance, and should have been afforded an evi-
dentiary hearing on his claim.

In the face of Such’s letter, which explicitly made Garcia
aware of the possible benefit to conducting a psychological
evaluation and seeking the testimony of family members, it is
difficult to believe that Garcia’s decision not to pursue these
avenues constituted a “reasoned tactical choice.” This is espe-
cially true given that Garcia failed to even inform Gonzalez’s
family members that a sentencing hearing was taking place.
Without a hearing, we are left to wonder what Garcia’s
excuse was for failing to pursue these simple and potentially
useful steps, and his failure to pursue them certainly falls
below an “objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984).

The majority contends that Gonzalez failed to offer suffi-
cient evidence to warrant an evidentiary hearing on his federal
habeas petition. This seems to ignore Such’s letter to Garcia
which reflected Such’s own investigation and suggestions on
how to prepare for Gonzalez’s re-sentencing. Because Garcia
followed none of the suggestions, there is of course no record
1746 GONZALEZ v. KNOWLES
of what would have happened had he done so. Only an evi-
dentiary hearing can answer that question.

Moreover, without a hearing, we cannot know whether
Garcia’s inaction prejudiced Gonzalez. It may be that family
members were in fact unwilling to testify in his favor and that
a mental exam would not have been helpful. But we will
never know this because Garcia never raised a finger to find
out. At the very least, however, Gonzalez raises a “colorable
claim” that there is a “reasonable probability,” id. at 694, that
a psychiatric evaluation and family member testimony would
have impacted his sentence. The majority’s suggestion that
“[t]he testimony of sympathetic family members would not
have impacted” any of the sentencing factors the court consid-
ered simply makes no sense and, without an evidentiary hear-
ing, we will never know why Garcia never sought them out
or what those family members would have said. But Garcia’s
failure to even inquire whether family members would testify
meant that the sentencing court would not hear potentially
critical evidence relating to both mitigation and rehabilitation.2
I would remand for an evidentiary hearing to afford Gonzalez
a full and fair opportunity to pursue his claim of ineffective
assistance.

2
Garcia’s shoddy representation is all the more troublesome given that
the risk of ineffective assistance could have been easily removed had the
trial court simply appointed Such to represent Gonzalez at re-sentencing.
The judge’s refusal to appoint Such, essentially because it was not the
usual practice, was arbitrary and contrary to common sense. There was
every reason, including economy, to appoint Such, since he offered to rep-
resent Gonzalez at the same rate the state would have paid through the pri-
vate defender program, and he was already familiar with the issues that
would be pertinent at re-sentencing. The majority’s assertion that appoint-
ment of counsel of choice is not a panacea misses the point. In this partic-
ular case, appointment of Such might well have made a difference. But we
cannot know because there was no evidentiary hearing.