Roman Arredondo v. Rob Persson

FILED
NOT FOR PUBLICATION
OCT 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMAN RAFAEL ARREDONDO, No. 15-35697

Petitioner-Appellant, D.C. No. 6:13-cv-00431-AC

v.
MEMORANDUM*
ROB PERSSON,

Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding

Submitted October 4, 2016**
Portland, Oregon

Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.

Oregon state prisoner Roman Arredondo was convicted by a jury of rape,

sexual abuse, contributing to the sexual delinquency of a minor, and furnishing

alcohol to a minor. At the close of trial, the prosecutor commented on Arredondo’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
flippant demeanor during the victim’s testimony, and defense counsel did not

object. Arredondo filed a state habeas petition, arguing ineffective assistance of

counsel based in part on his trial counsel’s failure to object to the prosecution’s

remarks. The Oregon post-conviction court denied Arredondo’s petition.

Arredondo then filed a pro se federal habeas petition under 28 U.S.C. §

2254. In his federal habeas petition, Arredondo claimed ineffective assistance of

counsel based on a myriad of alleged deficiencies. The district court denied habeas

relief, but issued a Certificate of Appealability as to the ineffective assistance claim

based on trial counsel’s failure to object to the closing remarks. Arredondo now

appeals the district court’s denial of his habeas petition. We affirm.

Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we may grant relief only when a state court’s adjudication of a 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,” or “that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

1. Arredondo argues ineffective assistance of counsel based on his trial

attorney’s decision not to object to the prosecutor’s closing remarks.

2
To succeed on a claim of ineffective assistance, a habeas petitioner must

prove that his “counsel’s representation fell below an objective standard of

reasonableness,” and that there was “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Where, as

here, a state court has denied a Strickland claim on the merits, AEDPA’s strictures

impose an additional level of deference “that gives both the state court and the

defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013)

(citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

a. The Oregon post-conviction court reasonably concluded, based on the

record and on the law binding upon the Oregon trial court, that Arredondo’s trial

counsel reasonably thought that any objection to the prosecutor’s comment would

be meritless. See Demirdjian v. Gipson, No. 09-56453, –––– F.3d ––––, 2016 WL

4205938, at *9 (9th Cir. Aug. 10, 2016) (“[T]he state court could have concluded

[trial counsel] reasonably thought any objection would be ‘meritless’ . . . .”

(quoting Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005))).

b. The state court also reasonably concluded that Arredondo did not

suffer unfair prejudice because the prosecutor’s remarks were only one paragraph

in a nineteen-page closing argument, and the trial judge advised the jury that

3
attorneys’ statements and arguments are not evidence. See Cunningham, 704 F.3d

at 1159 (finding no prejudice where the challenged “comments were a single

paragraph of a twenty-page argument and the trial judge explained to the jury that

closing arguments are not evidence”). Additionally, a significant amount of

independent evidence supported the state’s case, such that any detrimental effects

from trial counsel’s failure to object would not have swayed the outcome.

Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (finding no prejudice

from trial counsel’s failure to object to an improper closing argument because “[a]

substantial amount of other independent evidence pointed squarely at [defendant’s]

guilt, and the jury was properly advised that counsel’s statements were merely

argument, not evidence”).

AFFIRMED.