FILED
NOT FOR PUBLICATION
MAR 26 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL PITTS, No. 16-56509
Petitioner-Appellant, D.C. No. 2:14-cv-06427-VAP-KES
v.
MEMORANDUM*
DEBORAH JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted March 9, 2018
Pasadena, California
Before: W. FLETCHER and OWENS, Circuit Judges, and MOSKOWITZ,** Chief
District Judge.
Petitioner-Appellant April Pitts (“Petitioner”) appeals the denial of her
petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253.
We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, Chief United States District
Judge for the Southern District of California, sitting by designation.
Petitioner’s federal habeas petition is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Under AEDPA, we may not grant
habeas relief unless the last reasoned state-court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “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)–(2). The last reasoned state-court
decision was the California Court of Appeal’s denial of Petitioner’s claim on July
25, 2013.
The California Court of Appeal’s decision was not “contrary to” clearly
established federal law. 28 U.S.C. § 2254(d)(1). To be “contrary to” clearly
established federal law, the state court must have “reache[d] a legal conclusion
opposite the Supreme Court’s or conclude[d] differently on an indistinguishable set
of facts.” DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). Here, the state
court expressly applied the proper standard for ineffective assistance of counsel
(“IAC”) claims established in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, Petitioner must show that her “counsel’s representation fell
below an objective standard of reasonableness,” and that she was prejudiced as a
result. 466 U.S. at 688. Strickland itself denied an IAC claim alleging an
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unreasonable failure to investigate. Id. at 699–700. Petitioner points to no
“indistinguishable” Supreme Court case granting relief based on such a claim.
The California Court of Appeal’s decision also did not “involve[] an
unreasonable application of” clearly established federal law. 28 U.S.C.
§ 2254(d)(1). To meet this “difficult” standard, Petitioner needed to show that “the
state court’s ruling . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Moreover, because
Petitioner’s ineffective assistance of counsel claim is governed by the “general”
Strickland standard, we must be “doubly deferential” to the state court’s
evaluation. Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (per curiam) (quoting
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Here, there was room for fairminded disagreement about the reasonableness
of counsel’s performance. Petitioner argues that her counsel should have done
more to pursue the misidentification defense, but “[a]n attorney need not pursue an
investigation that would be fruitless” or “harmful to the defense.” Harrington, 562
U.S. at 108. Pursuing the potential misidentification evidence that Petitioner
describes would have been fruitless, if not harmful. For example, even if Jakia,
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Dee, or Williams could have been located, they likely would have emphasized,
rather than minimized, Petitioner’s role in the robbery in order to protect their own
interests. Especially in the case of Williams, “trial counsel, as a matter of strategy,
was much happier with having [her] as an empty chair to which he could point,
without facing the danger of refutation.” Smith v. Stewart, 140 F.3d 1263, 1273
(9th Cir. 1998). Similarly, counsel rejected the idea of introducing a photograph of
Williams at trial based on the risk that the robbery victim would only become more
certain of her identification of Petitioner after seeing the photograph. This
calculation, along with counsel’s other decisions, are strongly presumed to result
from “reasonable professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189
(2011) (quoting Strickland, 466 U.S. at 690). The cases that Petitioner cites do not
support Petitioner’s attempts to rebut that presumption. See, e.g., Rompilla v.
Beard, 545 U.S. 374, 383–84 (2005) (addressing trial counsel’s failure “to examine
the court file on Rompilla’s prior conviction,” which was “a public document,
readily available for the asking at the very courthouse where Rompilla was to be
tried”); Wiggins v. Smith, 539 U.S. 510, 524–25 (2003) (addressing penalty phase
counsel’s failure to “expand their investigation beyond the [pre-sentence
investigation] and [Department of Social Services] records,” and noting that
“counsel uncovered no evidence in their investigation to suggest that a mitigation
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case . . . would have been counterproductive, or that further investigation would
have been fruitless”).
There was also room for fairminded disagreement about the prejudice
resulting from any deficiency in counsel’s performance. Petitioner needed to
demonstrate “a reasonably probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Harrington, 562 U.S. at
104 (quoting Strickland, 466 U.S. at 694). Especially given the confidence at trial
of the robbery victim in her identification of Petitioner, and the damning
confession available as rebuttal evidence, it was not unreasonable for the state
court to find no reasonable probability of a different result.
Finally, the California Court of Appeal’s decision was not “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)(2). Petitioner argues that the state
court unreasonably determined that counsel possessed a photograph of Williams.
But the state court simply recounted counsel’s confused testimony on the matter,
without resolving the factual issue.
AFFIRMED.
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