FILED
NOT FOR PUBLICATION
MAY 15 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERENCE PASSMORE, No. 16-35685
Petitioner-Appellant, D.C. No. 1:13-cv-00121-CSO
v.
MEMORANDUM*
DAN O’FALLON and ATTORNEY
GENERAL FOR THE STATE OF
MONTANA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Submitted May 10, 2018**
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,*** Chief District
Judge.
*
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).
***
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
Terence Passmore appeals the district court’s order denying his petition for a
writ of habeas corpus under 28 U.S.C. § 2254.
The state court’s rejection of Passmore’s claims that his due process and
effective assistance of counsel rights were violated due to the presence of Dixie
Jimison on the jury was not an unreasonable application of Supreme Court
precedent. It is irrelevant that the state court did not expressly address these
claims, given that there was a “reasonable basis for the state court to deny relief.”
Reis-Campos v. Biter, 832 F.3d 968, 974 (9th Cir. 2016) (quoting Harrington v.
Richter, 562 U.S. 86, 98 (2011)). There is no evidence that Jimison was unable to
put aside her initial impression and “render a verdict based on the evidence
presented,” and “the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is [not] sufficient to rebut the presumption
of a prospective juror’s impartiality.” Murphy v. Florida, 421 U.S. 794, 800
(1975) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)); see Skilling v. United
States, 561 U.S. 358, 396 (2010). Therefore, the due process claim fails.
Moreover, because the state court could reasonably conclude that the trial court
would not have stricken Jimison for cause, and thus that Jimison’s presence on the
jury did not prejudice Passmore, its rejection of Passmore’s claim for ineffective
assistance of counsel based on counsel’s failure to strike Jimison was not an
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unreasonable application of Supreme Court precedent. See Wainwright v. Witt, 469
U.S. 412, 424 (1985); Strickland v. Washington, 466 U.S. 668, 694 (1984).
Contrary to the district court’s order, the state habeas court did not need to
make a credibility finding in order to conclude that Jimison’s presence on the jury
would not deprive Passmore of a fair trial. Because no evidentiary hearing is
required when the factual allegations, even if proven, do not state a case for habeas
relief, the state court’s rejection of Passmore’s juror bias claims was not based on
an unreasonable determination of the facts. See Hibbler v. Benedetti, 693 F.3d
1140, 1148 (9th Cir. 2012).
Further, the state court could reasonably conclude that counsel’s failure to
highlight minor inconsistencies in J.R.’s otherwise consistent story told from 1998
through the criminal trial in 2006 was not prejudicial. Therefore its rejection of
Passmore’s claim for ineffective assistance of counsel was not an unreasonable
application of Strickland.
Finally, we reject Passmore’s ineffective assistance of counsel claim based
on the cumulative effect of counsel’s conduct. The failure to present Popejoy’s
cumulative testimony did not prejudice Passmore in light of Edna Miller’s detailed
account of Passmore’s sexual interest in C.R., where Miller stated that she saw
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Passmore “joggling” C.R. “up and down” as she “straddled” Passmore’s legs. See
Woods v. Sinclair, 764 F.3d 1109, 1125 (9th Cir. 2014).
AFFIRMED.
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