FILED
NOT FOR PUBLICATION OCT 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY DEWAYNE HAMMONDS, No. 09-55124
Petitioner - Appellant, D.C. No. 5:05-cv-00379-ODW-OP
v.
MEMORANDUM *
CHARLES M. HARRISON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted September 1, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and NAVARRO, District
Judge.**
California state prisoner Anthony Dewayne Hammonds appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury
conviction of child endangerment, for which he received a three-strikes sentence of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gloria M. Navarro, District Judge for the District of
Nevada, sitting by designation.
25 years to life. We review the district court’s decision to deny Hammonds’s
petition for a writ of habeas corpus de novo. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004).
Hammonds contends that he is entitled to a writ of habeas corpus because
his trial counsel rendered ineffective assistance of counsel by failing to investigate
potential witnesses, an issue we certified, and on the grounds that insufficient
evidence supported his conviction and that his sentence is cruel and unusual in
violation of the Eighth Amendment, issues we did not certify.
Hammonds was convicted of child endangerment after police discovered a
child in the rear house of a property on which there was also a shed containing a
methamphetamine lab. Police raided the property a few days later, and arrested
Hammonds, who was found hiding in a closet in the front house of the property.
Hammonds contends that his counsel’s performance was deficient because she did
not interview witnesses who would have testified (1) that Hammonds did not live
at the residence where the methamphetamine lab was found, (2) that Hammonds
did not know about the methamphetamine lab, and (3) that Hammonds did not
have custody of the child found in the rear house.
Under the Antiterrorism and Effective Death Penalty Act (AEPDA),
Hammonds is entitled to habeas relief if he shows that the state appellate court’s
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decision to deny his ineffective assistance of counsel claim “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceedings.” 28 U.S.C. § 2254(d)(1), (2). The standard for evaluating claims
based on the alleged ineffective assistance of counsel was established clearly in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Hammonds
must show both that his counsel’s performance was deficient and that “the
deficient performance prejudiced the defense.” Earp v. Ornoski, 431 F.3d 1158,
1173 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687).
The standard for deficient performance is deferential. “There is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998)
(quoting Strickland, 466 U.S. at 689). “The standard for prejudice is a reasonable
probability that but for counsel’s error the result would have been different.” Bragg
v. Galaza, 242 F.3d 1082, 1089 (citing Strickland, 466 U.S. at 694). The
“likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 131 S. Ct. 770, 792 (2011).
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The state appellate court concluded that Hammonds failed to establish
ineffective assistance of counsel because (1) under California law, Hammonds was
liable for child endangerment whether or not he lived on the property provided he
knew about the methamphetamine lab, (2) there was credible evidence presented at
trial that Hammonds knew about the methamphetamine lab, and (3) although there
was significant evidence that the child was Hammonds’s son, it was not necessary
to prove that fact to hold Hammonds directly liable because the danger posed by
the methamphetamine lab “was not limited to the moment the police entered, but
continued for as long as the laboratory was there.”
In light of the evidence presented at trial that Hammonds knew about the
methamphetamine lab and continued to visit, if not live with, his son at the
property, the state appellate court concluded that Hammonds’s counsel made a
reasonable tactical decision not to interview the witnesses because certain
testimony was immaterial, and the admission of the remaining testimony would not
have resulted in a different outcome.
Under the applicable terms of the AEDPA, we cannot provide relief in the
face of the state court’s analysis unless it was an objectively unreasonable
application of the Supreme Court’s precedent in Strickland. Here, the state
appellate court did not make an objectively unreasonable application of Strickland
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by deciding that Hammonds did not establish ineffective assistance of counsel in
light of the evidence admitted during the trial. See Lockyer v. Andrade, 538 U.S.
63, 75 (2003).
Finally, we decline to consider the issues not included in the certificate of
appealability because Hammonds has not made the requisite “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
AFFIRMED.
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