FILED
NOT FOR PUBLICATION
JAN 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANELL L. PRATT, No. 16-15535
Petitioner-Appellant, D.C. No. 4:13-cv-01225-YGR
v.
MEMORANDUM*
B. GOWER,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted January 10, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and RAWLINSON and WATFORD, Circuit
Judges.
Danell Pratt appeals the district court’s denial of his petition for a writ of
habeas corpus brought under 28 U.S.C. § 2254. We have jurisdiction pursuant to
28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court did not err in holding that the state court reasonably
concluded that Pratt’s right to confront witnesses under the Sixth Amendment was
not violated by the admission of jail phone records. 28 U.S.C. § 2254(d). The
state court reasonably concluded that the jail phone records were cumulative of
other evidence that tended to show Pratt’s attempt to fabricate an alibi. The state
court did not misapply clearly established law or make an unreasonable
determination of fact when it concluded that Pratt was not prejudiced by the
admission of the records.
We need not decide whether Pratt’s counsel’s performance was
constitutionally deficient because Pratt’s claims of ineffective assistance of counsel
fail for lack of prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(holding that an ineffective assistance of counsel claim has two components:
deficient performance and prejudice). The undisputed evidence showed that Pratt
attempted through various means to fabricate an alibi. Eyewitnesses identified him
as the shooter. Thus, the state court reasonably determined that Pratt failed to
demonstrate Strickland prejudice on the claims it considered.
To the extent that the state court overlooked some of Pratt’s ineffective
assistance of counsel claims, we review those claims de novo. Johnson v.
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Williams, 568 U.S. 289, 302–03 (2013). On de novo review, for the same reasons,
we conclude that Pratt failed to establish Strickland prejudice on those claims.
We review Pratt’s claim of complete denial of counsel under the Sixth
Amendment de novo because the state court overlooked the claim. Id. The denial
of counsel inquiry focuses on whether counsel “act[ed] in the role of an advocate”
and put the prosecution’s case to “meaningful adversarial testing.” United States v.
Cronic, 466 U.S. 648, 656 (1984). As the District Court noted, “the record reflects
a trial attorney who was perhaps not particularly skillful but who nevertheless
successfully made and argued against objections, adequately cross-examined
government witnesses, presented a logical defense to the jury in light of the
evidence, and advocated on Petitioner’s behalf during a jury instruction conference
and at sentencing.” The record reveals that Pratt was not completely denied
counsel.
We are troubled by some of the allegations made by Pratt as to his attorney’s
conduct, as was the State of California. However, applying the appropriate legal
standards to this case, we conclude that the district court properly denied Pratt’s
petition for a writ of habeas corpus.
AFFIRMED.
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