FILED
NOT FOR PUBLICATION
NOV 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-35517
Plaintiff-Appellee, D.C. Nos. 4:14-cv-00047-BMM
4:11-cr-00079-BMM-1
v.
EDWARD RONALD STAMPER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted October 25, 2019
Portland, Oregon
Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.
Edward Stamper was convicted of sexual abuse in violation of 18 U.S.C. §
2242(2)(B). He now seeks post-conviction relief under 28 U.S.C. § 2255 based on
claims of ineffective assistance of trial and appellate counsel. He contends that his
counsel should have challenged the Ninth Circuit’s Model Jury Instructions, which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
did not require the jury to find beyond a reasonable doubt that he had knowledge of
the victim’s incapacity. See Manual of Model Criminal Jury Instructions for the
District Courts of the Ninth Circuit § 8.172 (2010) (requiring only that the
defendant “knowingly” engaged in a sexual act with a person “physically incapable
of declining participation in, or communicating unwillingness to engage in that
sexual act”); cf. United States v. Bruguier, 735 F.3d 754, 758 (8th Cir. 2013) (en
banc) (imposing an additional scienter element and requiring knowledge of the
victim’s incapacity).
A defendant’s Sixth Amendment right to effective counsel is denied when
his counsel’s representation is both deficient and prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The Court need not address both elements
of the inquiry if the defendant fails to meet his burden on either prong. Gonzalez v.
Wong, 667 F.3d 965, 987 (9th Cir. 2011) (quoting Strickland, 466 U.S. at 697).
Even if his trial and appellate counsel were deficient, Stamper was not
prejudiced by the District Court’s failure to give the proposed jury instruction. To
show prejudice, Stamper must show a “reasonable probability” that the result of
the proceeding would have been different had counsel provided effective
assistance. Strickland, 466 U.S. at 694. Even if the instruction had been given, the
jury would have relied on the objective physical evidence of the victim’s
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intoxication on the night in question, Stamper’s own admission that the victim was
very intoxicated on the night in question (calling her an “8 out of 10” on a scale of
intoxication), the testimony of the victim’s cousin that he carried the victim, who
was unresponsive, to the bedroom, and the eyewitness testimony that the victim
was unconscious while Stamper was having sex with her. In voting to convict
Stamper, the jury credited this testimony and thus necessarily rejected Stamper’s
version of events—that the victim was the sexual aggressor and consented to sex.
There is no reasonable probability that Stamper would have been found not guilty
even with an additional instruction.
Stamper also seeks a Certificate of Appealability for an additional
ineffective assistance claim that his lawyer should have sought cell phone records
from the victim and a witness. To obtain a COA under 28 U.S.C. § 2253(c), “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Although this standard is “not a particularly exacting one,” Wilson v.
Belleque, 554 F.3d 816, 826 (9th Cir. 2009), Stamper cannot clear this low hurdle.
Stamper’s trial counsel made a reasonable strategic decision to not pursue the
investigation. “[W]hen a defendant has given counsel reason to believe that
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pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as unreasonable.”
Strickland, 466 U.S. at 691. The phone records may have shown that the victim
was alert (and thus not incapacitated), but could well have contained information
injurious to Stamper’s defense. Stamper’s trial counsel considered the possible
consequences of such an investigation and made a reasonable strategic decision to
forego investigation.
The District Court’s decision is AFFIRMED. We DENY the motion to
expand the Certificate of Appealability.
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