Jimmy Richardson v. William Knipp

FILED
NOT FOR PUBLICATION
APR 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIMMY RICHARDSON, No. 14-15984

Petitioner - Appellant, D.C. No. 2:11-cv-02996-GEB-
CKD
v.

WILLIAM KNIPP, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding

Argued and Submitted April 12, 2016
San Francisco, California

Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.

Richardson appeals from the judgment of the district court denying his

petition for a writ of habeas corpus. We affirm.

Richardson advances two issues. The first is whether his appellate counsel

was ineffective for failing to “request that the California Court of Appeal recall its

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
remittitur” because of a change in the law. The second is whether his appellate

counsel was ineffective for “failing to challenge the admissibility of Mr.

Richardson’s probation report to prove a prior strike allegation.”

The California Court of Appeal ruled that there were no grounds under

California law under which Richardson’s counsel could have successfully moved

to recall the remittitur. To quote the court’s opinion, “Counsel had no ground to

seek the relief, and no prejudice flowed from counsel’s decision. Had counsel

sought recall, we would have denied the request.” In re Richardson, 126 Cal. Rptr.

3d 720, 735 (Cal. Ct. App. 2011). The California Supreme Court left this ruling

intact. The issue is entirely one of state law and therefore not cognizable pursuant

to federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

The Court of Appeal determined that Richardson’s appellate counsel’s

performance was not constitutionally deficient for failing to challenge the use of a

probation report to prove a prior strike. This decision was neither contrary to, nor

involved an unreasonable application of clearly established law as determined by

the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). The decision was

not objectively unreasonable, it was not beyond fairminded disagreement, and it

did not amount to an extreme malfunction of justice. See Woods v. Etherton, 136

S. Ct. 1149, 1152-53 (2016). As the Court of Appeal correctly observed,

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“Appellate counsel could not have reasonably known then that the [state] Supreme

Court was about to change the law in its [People v.] Trujillo [146 P.3d 1259 (Cal.

2006)] decision. Counsel thus was not expected to argue against the prevailing

law.” In re Richardson, 126 Cal. Rptr. 3d at 730.1

AFFIRMED.

1
We remind the Attorney General of California that Federal Rule of
Appellate Procedure 28(j) letters supported by decades-old precedent are not to be
used to inject an issue into a case that was not argued in the briefs, which is what
occurred here. Because counsel’s explanation for such a misstep was that it came
from an office pre-argument meeting, we deem this reminder necessary.

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