NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR RAYMOND ROBLERO, No. 17-55039
Petitioner-Appellant, D.C. No.
5:14-cv-01110-PA-JEM
v.
SCOTT KERNAN, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted December 4, 2018**
Pasadena, California
Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,*** District
Judge.
A California jury convicted Appellant Victor Roblero of molesting his
stepdaughter (Jane Doe No. 1) and her friend (Jane Doe No. 2) over the course of
*
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 Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
several years. At trial, the jury heard from both victims, and viewed a police
interview in which Roblero admitted that he orally copulated and digitally
penetrated Jane Doe No. 2 when she was less than eighteen years old. While
Roblero’s defense counsel conceded Roblero’s guilt on the oral sex and sexual
penetration charges, defense counsel urged the jury to find Roblero not guilty of
the remaining six counts of lewd acts on a child, while asking it to convict only on
the lesser-included offenses. The jury, however, found Roblero guilty on all
counts, as charged. Roblero filed a series of state habeas petitions, which the
California Supreme Court denied without reasoning. Roblero then filed this
petition in federal court, which the district court denied.
We review de novo a district court’s denial of a habeas petition and review
factual findings for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.
2000) (en banc). The Anti-Terrorism and Effective Death Penalty Act (AEDPA)
imposes a “highly deferential” standard for evaluating state court denials of habeas
relief. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). When a state
supreme court rejects a claim without reasoning, a habeas court must consider
arguments or theories that could have supported the state court’s decision. See
Harrington v. Richter, 562 U.S. 86, 102 (2011). Then it must ask whether fair-
minded jurists could disagree that those arguments or theories are inconsistent with
United States Supreme Court precedent. Id.
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On appeal, Roblero argues that his defense counsel was ineffective because
counsel conceded guilt on several charges. This argument is not persuasive. It was
reasonable for defense counsel to concede Roblero’s guilt on the two less serious
felony charges to gain credibility with the jury for his defense of the more serious
felony charges. Moreover, in light of the overwhelming evidence against Roblero,
including his admissions, it is not reasonably probable that, but for defense
counsel’s concessions, Roblero would have received a different verdict.
A successful ineffective assistance of counsel claim must establish both
deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). To determine whether defense counsel’s representation was
constitutionally deficient, a court must find “that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. A court may assume
prejudice if “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984).
Here, the California Supreme Court did not unreasonably apply U.S.
Supreme Court precedent—under either Strickland or Cronic—when it denied
Roblero’s habeas petition. The California Supreme Court could have reasonably
determined that defense counsel’s concessions were not the functional equivalent
of a guilty plea or a failure of adversarial testing. For example, the state court could
have determined that counsel was trying to gain the credibility of the jury by
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strategically conceding guilt on the less serious felony charges to avoid conviction
on the more serious felony charges.
Where the evidence of guilt on some counts is overwhelming, it may be
sound strategy for defense counsel to concede guilt on those charges and focus on
the more defensible charges, particularly if the defensible charges carry a greater
penalty. See United States v. Thomas, 417 F.3d 1053, 1058–59 (9th Cir. 2005);
United States v. Swanson, 943 F.2d 1070, 1076 (9th Cir. 1991). Therefore, as the
U.S. Supreme Court held, “counsel cannot be deemed ineffective for attempting to
impress the jury with his candor and his unwillingness to engage in ‘a useless
charade.’” Florida v. Nixon, 543 U.S. 175, 192 (2004) (quoting Cronic, 466 U.S. at
656–57 n.19).
The majority of Roblero’s arguments in his habeas petition and on appeal
center around what defense counsel could have done differently. In other words,
Roblero is second-guessing his defense counsel’s trial tactics and strategy. This is
precisely the type of post-conviction second-guessing that Strickland forbids. See
Strickland, 466 U.S. at 689. Given that Roblero admitted to the two less serious
felony charges during his police interview, conceding guilt on these charges would
have been a reasonable strategic decision by defense counsel. Similarly, for the
remaining six counts, it was a reasonable strategic decision to ask the jury to
convict on the lesser-included offenses. The record establishes that defense counsel
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was likely trying to gain credibility with the jury by focusing on the defensible
charges. It is reasonable that the California Supreme Court saw it this way, too.
Lastly, because there is no clearly established U.S. Supreme Court precedent
holding that defense counsel is necessarily deficient for strategically conceding
guilt on a subset of charges in a noncapital case, defense counsel, here, was not
ineffective.
Second, defense counsel’s concessions were not equivalent to a complete
failure in the adversarial process. See Nixon, 543 U.S. at 188. Here, throughout
trial and during closing, defense counsel meaningfully tested the prosecutor’s case
by contesting the admissibility of evidence, cross-examining witnesses, and
presenting a defense case. Furthermore, Roblero retained his right to appeal, and
did appeal his conviction twice. Defense counsel, therefore, did not fail to subject
the prosecution’s case to meaningful adversarial testing. Moreover, in view of the
overwhelming evidence against Roblero, including his admissions and victim
testimony, the California Supreme Court could also have reasonably determined
that it is not reasonably probable that, but for counsel’s concessions, Roblero
would have received a more favorable verdict.
Accordingly, we AFFIRM the district court’s order denying habeas relief.
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