Taryn Christian v. Todd Thomas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TARYN CHRISTIAN, No. 19-70036
Applicant,

v. OPINION

TODD THOMAS,
Respondent.

Application to File Second or Successive
Petition Under 28 U.S.C. § 2254

Argued and Submitted October 19, 2020
Honolulu, Hawaii

Filed December 14, 2020

Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.

Opinion by Judge Bea
2 CHRISTIAN V. THOMAS

SUMMARY *

Habeas Corpus

The panel denied Taryn Christian’s application for
federal habeas corpus relief from his 1997 conviction in
Hawaii state court for second-degree murder in a case in
which Christian seeks retroactive relief based on McCoy v.
Louisiana, 138 S. Ct. 1500 (2018), which held that a
defendant’s Sixth Amendment rights are violated if, counter
to the defendant’s express objections, the defendant’s
counsel concedes guilt.

Christian filed in the district court a motion pursuant to
Fed. R. Civ. P. 60(d) seeking relief from his first habeas
judgment. The district court construed the motion as an
application to file a second or successive (SOS) habeas
petition and referred it to the Ninth Circuit.

The panel accepted the referral and confirmed that the
Rule 60(d) filing, which asserted a federal basis for relief
from Christian’s state conviction, is properly construed as an
application for authorization to file an SOS habeas petition.

The panel held that the application does not make the
prima facie showing required in 28 U.S.C. § 2244(b)(2) for
authorization to file an SOS petition. The panel assumed
without deciding that McCoy created a new rule of
constitutional law and that it was previously unavailable to
Christian, but found that the application was otherwise

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 CHRISTIAN V. THOMAS 3

deficient. The panel held that the Supreme Court has not
made McCoy retroactive on collateral review. The panel
also held that because counsel does not violate a defendant’s
Sixth Amendment rights under McCoy simply by arguing
self-defense in the alternative, Christian does not show that
his proposed petition would rely on McCoy’s rule.

COUNSEL

Gary Modafferi (argued), Law Office of Gary A. Modafferi
LLC, Las Vegas, Nevada, for Applicant.

Richard B. Rost (argued), Deputy Prosecuting Attorney;
Donald S. Guzman, Prosecuting Attorney; Department of
the Prosecuting Attorney, Wailuku, Maui, Hawaii; for
Respondent.

OPINION

BEA, Circuit Judge:

Taryn Christian applies for federal habeas corpus relief
from his 1997 conviction in Hawaii state court for second-
degree murder. Having already been denied federal habeas
relief once, he now seeks retroactive relief based on the
Supreme Court’s 2018 decision in McCoy v. Louisiana,
138 S. Ct. 1500. The Supreme Court held in McCoy that a
defendant’s Sixth Amendment right to determine the
objective of his defense is violated if counsel, counter to the
defendant’s express instructions to maintain innocence,
instead concedes guilt. Christian now argues his trial
counsel effectively conceded his guilt by urging that the jury
4 CHRISTIAN V. THOMAS

consider self-defense as an alternative theory for acquittal
against Christian’s wishes.

In this proceeding, he initially filed a motion in the
district court pursuant to Federal Rule of Civil Procedure 60
seeking relief from his first habeas judgment. The district
court construed the filing as an application to file a second
or successive petition for writ of habeas corpus (“SOS
petition application”) and referred it to the Ninth Circuit.
We review whether Christian’s filing is indeed an SOS
petition application and, if so, whether, pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), he is entitled to file a second or successive
habeas petition at the district court based on McCoy.

I

A

In 1997, a jury in Hawaii state court found Christian
guilty of second-degree murder of Vilmar Cabaccang. 1 The
night of the murder, Cabaccang awoke to find an intruder
inside his car parked outside his home. After confronting
and chasing the fleeing intruder, Cabaccang caught and
fought the knife-wielding stranger. Cabaccang’s then-
girlfriend aided in fending off the intruder, but Cabaccang
had already been stabbed by that time. He would later die

1
Christian was also convicted of attempted third-degree murder,
attempted third-degree theft, and use of a deadly or dangerous weapon
in the commission of a crime.
 CHRISTIAN V. THOMAS 5

from the wound. The state identified Christian and
prosecuted him for Cabaccang’s murder. 2

At trial, Christian maintained his innocence throughout,
insisting that his counsel argue that a third man was the true
perpetrator. Christian attached a letter from his trial counsel
to the instant petition, which memorialized their pretrial
strategy discussion. His trial counsel, Anthony Ranken,
stated in the letter that he recommended Christian “not
contest identification and instead [go] with a self defense
theory.” Dkt. 2 at 69. Rankin’s letter states Christian
rejected his recommendation, and that Christian “decided
that [he] still do[es] wish to contest identification.” Id.
Ranken also specified in the letter: “I cannot admit
identification without your consent” and that “[w]e will
contest all aspects of the prosecution’s case for which we
have any contrary evidence at all.” Id. at 69–70. The letter
does not state that Christian told Ranken not to argue self-
defense. Rather, Ranken wrote that he believed he “must not
entirely foreclose the option of arguing a self-defense
theory” and suggested he may so argue after reviewing the
evidence presented at trial. Id. Christian did not sign the
letter.

At trial, Ranken did contest identification per his and
Christian’s strategy discussion by presenting evidence and

2
The state based its case against Christian on the following
evidence: Christian’s ex-girlfriend’s statement that he had confessed the
crime to her; a call between those two featuring incriminating statements
from Christian; Christian’s hat that was found at the scene of the crime,
alongside gloves matching the type used by Christian’s employer;
Christian’s history of theft of car radios and Christian’s identification of
Cabaccang’s car in his notebook as a target; and two photo
identifications of Christian by Cabaccang’s ex-girlfriend and another
witness at the scene.
6 CHRISTIAN V. THOMAS

examining witnesses. During Ranken’s closing arguments,
after summarizing the defense’s primary theory of the case,
Ranken first presented to the jury his own theory of self-
defense. Ranken argued that if Christian was the one who
stabbed Cabaccang, then the evidence suggests he did so in
self-defense and that Christian lacked the mental state
required for a second-degree murder conviction. Ranken
prefaced his statements regarding self-defense by stating:

I’m going to assume now for the sake of
argument that [Christian] was the one who
inflicted these wounds despite everything I
said because I have to go on and help you
analyze the other portions of the case, the
other possible defenses just in case you do get
beyond that question that you don’t find a
reasonable doubt as to who did it and want to
move on to the next step.

Trial Tr., Dkt. 2 at 97. Later, when Ranken discussed how
Cabaccang was stabbed, he stated: “The way [Cabaccang]
got stabbed is obviously [Christian] from that position, if
[Christian] was the one who did it . . . .” Id. at 111.
Moments later, he repeated again: “If [Christian] was ever
facing [Cabaccang] – if [Christian] was ever facing
[Cabaccang] . . . .” Id. at 112. Ranken then moved on from
self-defense to argue Christian lacked the requisite state-of-
mind, prefacing this argument by stating: “Again if this was
[Christian] who did it, what was his state of mind at the
time?” Id. at 121.

Ultimately, Christian was convicted of the charges
against him, including second-degree murder, for which he
is serving a life sentence. Christian unsuccessfully appealed
his conviction to the Hawaii Supreme Court.
 CHRISTIAN V. THOMAS 7

B

In 2004, Christian filed his first petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, arguing, inter
alia, ineffective assistance of counsel. Christian questioned
multiple decisions made by Ranken during closing
arguments, including Ranken’s decision to argue self-
defense in the alternative against his wishes. The magistrate
judge recommended denying this basis for relief, finding
Ranken’s decision to argue self-defense in the alternative
was an objectively reasonable strategy under the
circumstances. The district court judge adopted the
magistrate judge’s findings and recommendation. The
district court granted Christian’s first habeas petition on
other grounds; however we reversed on appeal and denied
the petition in its entirety without remand. Christian v.
Frank, 595 F.3d 1076, 1078 (9th Cir. 2010).

In the meantime, Christian has repeatedly sought post-
habeas relief. In 2011, Christian attempted to reopen his
federal habeas proceeding by filing a Federal Rule of Civil
Procedure 60(b) motion in the district court, alleging newly
discovered evidence of fraud on the courts. The district
court construed the motion as an SOS petition application
and referred it to the Ninth Circuit, which denied the
application. Christian filed another Rule 60(b) motion in
2013, again alleging newly discovered evidence of fraud.
The district court this time did not construe the motion as an
SOS petition application. Instead, the district court held an
evidentiary hearing, but ultimately entered an order denying
the motion in 2015. In 2016, Christian filed a motion to
reconsider the 2015 order, which was denied. Christian filed
a second motion for reconsideration, which the district court
denied stating it would refuse to consider any more motions.
Christian then filed a third motion to reconsider, a petition
8 CHRISTIAN V. THOMAS

for writ of mandamus in the Ninth Circuit, a third Rule 60
motion, a second petition for writ of mandamus, and
multiple requests for certificates of appealability at the Ninth
Circuit; all were denied.

On October 19, 2018, Christian filed the instant action,
styled “Petitioner’s Independent Action for Equitable Relief
from Judgment Under Federal Rule 60(d)(1) Pursuant to
Intervening Supreme Court Precedent in McCoy v.
Louisianna, [sic] (2018).” The district court determined
Christian’s fourth Rule 60 filing was instead a disguised
SOS petition application. The court found that the petition
presented “a federal basis for relief from his underlying
conviction,” and was thus “a successive habeas petition,”
and referred it to the Ninth Circuit. 3

II

We have jurisdiction over applications for authorization
to file second or successive habeas corpus petitions pursuant
to 28 U.S.C. § 2244. Our role in determining whether to
authorize a second or successive habeas petition under
AEDPA is limited. We assess only whether a petitioner has
made a prima facie showing of a qualifying claim. 28 U.S.C.
§ 2244(b)(2), (b)(3)(C); Henry v. Spearman, 899 F.3d 703,

3
In January 2019, before this court, Christian filed a motion to hold
in abeyance the proceedings before the panel pending appeal of a
separate district court order denying Christian’s motion for entry of
findings of fact and conclusions of law pursuant to Federal Rule of Civil
Procedure 52(b). Dkt. 3. The Ninth Circuit has since denied Christian a
certificate of appealability of that order (although Christian currently
seeks certiorari review in the Supreme Court). Christian v. Frank, No.
19-15179 (9th Cir. Nov. 8, 2019). We DENY Christian’s motion. Also
pending are two motions for judicial notice, which we also DENY as
moot. Dkts. 7, 24.
 CHRISTIAN V. THOMAS 9

705 (9th Cir. 2018). Prima facie means “simply a sufficient
showing of possible merit to warrant a fuller exploration by
the district court.” Cooper v. Woodford, 358 F.3d 1117,
1119 (9th Cir. 2004) (en banc) (citations omitted).

III

“AEDPA imposes significant limitations on the power of
federal courts to award relief to prisoners who file second or
successive habeas petitions.” Ezell v. United States,
778 F.3d 762, 765 (9th Cir. 2015) (citations omitted). Prior
to filing an SOS petition with the district court, the petitioner
must first obtain authorization to do so from the court of
appeals. 28 U.S.C. § 2244(b)(3). In this gatekeeper role, we
must deny authorization to any second or successive petition
for habeas corpus unless it meets AEDPA’s strict
requirements. 28 U.S.C. § 2244(b)(1)–(3).

A

The threshold issue is whether Christian’s referred SOS
petition application is properly before us. Christian filed this
action with the district court as an independent action for
equitable relief from its prior habeas judgment pursuant to
Federal Rule of Civil Procedure 60(d). Rule 60 provides
procedures for a traditional motion for relief from a
judgment or order. Yet Rule 60(d) makes clear that it “does
not limit a court’s power to . . . entertain an independent
action to relieve a party from a judgment, order, or
proceeding” or “set aside a judgment for fraud on the court.”
The district court construed Christian’s filing as an
10 CHRISTIAN V. THOMAS

unauthorized SOS petition application and referred it to us
for review pursuant to Circuit Rule 22-3(a). 4

A person may not disguise a second or successive habeas
petition by styling it as a Rule 60 motion to avoid AEDPA’s
filing restrictions. “A habeas petitioner’s filing that seeks
vindication of [a federal basis for relief from a state court’s
judgment of conviction] is, if not in substance a habeas
corpus application, at least similar enough that failing to
subject it to the same requirements would be inconsistent
with [AEDPA].” Gonzalez v. Crosby, 545 U.S. 524, 531
(2005) (quotation marks and citation omitted).

Determining whether a Rule 60 filing is instead an
application for habeas relief depends on whether it “contains
one or more ‘claims.’” Id. at 530. “[A] ‘claim’ as used in
§ 2244(b) is an asserted federal basis for relief from a state
court’s judgment of conviction.” Id. “In most cases,
determining whether a Rule 60(b) motion advances one or
more ‘claims’ will be relatively simple. A motion that seeks
to add a new ground for relief will of course qualify.” 5 Id.

4
Circuit Rule 22-3(a) states: “If an application for authorization to
file a second or successive section 2254 petition or section 2255 motion
is mistakenly submitted to the district court, the district court shall refer
it to the court of appeals.”
5
We analyze whether a filing advances an unauthorized claim under
AEDPA using this same standard regardless of whether the original
filing is a Rule 60(b) motion or, as here, a Rule 60(d) independent action.
See Kostich v. McCollum, No. 16-5007, 647 F. App’x 887, 890 (10th Cir.
May 20, 2016) (unpublished) (“Motions brought under Rule 60(d) . . .
are subject to the same analysis as other motions to determine if they
bring unauthorized second or successive habeas claims.”); Gonzalez v.
Sec’y for Dep’t of Corr., 366 F.3d 1253, 1277 n.11 (11th Cir. 2004) (en
banc) (“[A] petitioner [may not] circumvent the restrictions on second or
 CHRISTIAN V. THOMAS 11

at 532 (citations omitted). “When a movant asserts one of
those grounds (or asserts that a previous ruling regarding one
of those grounds was in error) he is making a habeas corpus
claim.” Id. at 532 n.4. In contrast, for example, “a bona fide
Rule 60(b) motion attacks, not the substance of the federal
court’s resolution of a claim on the merits, but some defect
in the integrity of the federal habeas proceedings.” Hall v.
Haws, 861 F.3d 977, 985 (9th Cir. 2017) (quoting Crosby,
545 U.S. at 532).

Here, Christian does not urge a defect in the integrity of
his earlier federal habeas proceeding. Rather, he presents a
new claim for relief based on an intervening Supreme Court
case, McCoy. Thus, his filing was properly construed by the
district court as an SOS petition application. Christian
claims the district court’s denial of his Sixth Amendment
claim in his original habeas petition was due to the court’s
“clear[] misunderst[anding]” of the “Constitutional
significance” of the protected right discussed in McCoy.
Pet’r’s Br., Dkt. 2 at 29. He argues that “[i]n denying
Petitioner’s Sixth Amendment claim, the District Court
applied a very narrow reading of Strickland to justify
Ranken’s complete reversal of Petitioner’s defense in his
closing summation.” Id. at 32. In essence, Christian
complains that the district court’s interpretation of the
substantive law governing his ineffective assistance of
counsel claim was wrong in light of McCoy. In so doing,
Christian asserts the district court’s ruling on the merits of
his original habeas petition was in error. Thus, under
Gonzalez v. Crosby, Christian makes a claim covered under

successive petitions by the simple expedient of filing an independent
action aimed at the judgment denying habeas relief.”).
12 CHRISTIAN V. THOMAS

Section 2254. We therefore construe the Rule 60(d) action
as a habeas petition subject to the restrictions of AEDPA.

So construed, Christian’s petition before the panel is
challenging the same judgment (his conviction for second-
degree murder) as his original habeas petition, but on a new
basis. A petition that challenges the same judgment as a
prior habeas petition is considered second or successive. See
28 U.S.C. § 2244; Gonzalez v. Sherman, 873 F.3d 763, 767
(9th Cir. 2017). Christian concedes he had previously filed
a habeas petition challenging the same conviction he
challenges here and that it was denied. Pet’r’s Br., Dkt. 2
at 19–20. Therefore, the habeas petition before the panel is
second or successive under Section 2244. 6

We accept the district court’s referral of Christian’s Rule
60(d) action and confirm that the filing is properly construed
as an application for authorization to file a second or
successive petition for writ of habeas corpus. We move now
to the merits of the application.

B

We may authorize the filing of an SOS petition only if
the petitioner makes a prima facie showing that satisfies the
requirements of either 28 U.S.C. § 2244(b)(2)(A) or
6
Christian argues that his filing falls under an exception to the
second or successive rule outlined in Stewart v. Martinez-Villareal,
523 U.S. 637 (1998). Stewart held that a petitioner may bring a second
habeas action without falling under the requirements of Section 2244 if
the claim forwarded by the second petition was also originally brought
in the first petition, but was dismissed at that time for being unripe. Id.
at 643–44. This exception does not apply here. Christian does not
forward a newly ripened claim denied at his original habeas proceeding,
but seeks relief based on a new rule of constitutional law recognized by
the Supreme Court in McCoy.
 CHRISTIAN V. THOMAS 13

(b)(2)(B). 28 U.S.C. § 2244(b)(3)(C). As is relevant here,
Christian must make a prima facie showing that his proposed
petition “[1] relies on [2] a new rule of constitutional law,
[3] made retroactive to cases on collateral review by the
Supreme Court, [4] that was previously unavailable.”
Spearman, 899 F.3d at 705 (quoting 28 U.S.C.
§ 2244(b)(2)(A)).

Christian argues that the rule announced by the Supreme
Court in McCoy v. Louisiana is one such new rule and his
rights under McCoy were violated at trial such that he should
be afforded retroactive habeas relief. We review Christian’s
application to determine whether he has met these four
AEDPA requirements. For purposes of this analysis, we
assume without deciding that McCoy did indeed create a new
rule of constitutional law and that it was previously
unavailable to Christian. 7 However, we find Christian’s
application otherwise deficient.

1

In 2018, the Supreme Court decided McCoy v.
Louisiana, holding that a defendant’s Sixth Amendment
rights are violated if, counter to express objections, the
defendant’s counsel concedes guilt. 138 S. Ct. at 1512.

McCoy was charged with triple homicide in the first
degree. Id. at 1506–07. The state sought the death penalty
based on “strong,” even “overwhelming,” evidence against

7
We will observe, however, that we have previously held that a
counsel’s concession of guilt could be grounds for a claim of ineffective
assistance of counsel, and that this argument, at least, was available to
Christian during his first habeas proceedings. See United States v.
Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991).
14 CHRISTIAN V. THOMAS

McCoy. Id. at 1506, 1512. Despite the evidence arrayed
against him, McCoy insisted on his innocence. Id. at 1506.

McCoy’s counsel, skeptical of his client’s alibi and
believing the evidence in favor of conviction to be
insurmountable, determined that the best strategy for McCoy
was to concede guilt at the trial stage in hopes of building
credibility with the jury to avoid the death penalty at the
sentencing stage. Id. at 1510. Yet McCoy was “intransigent
and unambiguous” in expressly objecting to his counsel’s
proposed strategy. Id. at 1507. McCoy “vociferously
insisted” he was innocent and “adamantly objected to any
admission of guilt.” Id. at 1505.

McCoy’s counsel ignored his client’s instructions. At
trial, he was unambiguous in conceding guilt before the jury,
stating “my client committed three murders” and that he
“took [the] burden off of [the prosecutor].” Id. at 1507
(alterations in original). McCoy’s counsel did not couch,
equivocate, or preface these statements with assurances that
he was arguing only in the alternative. In so doing, his
express objective was not to obtain acquittal, but to lessen
the severity of the penalty. Id. at 1510 (observing that
McCoy’s counsel’s “express motivation for conceding guilt
was . . . to try to build credibility with the jury, and thus
obtain a sentence lesser than death.”).

On direct review from the Louisiana Supreme Court, the
U.S. Supreme Court reversed McCoy’s conviction on the
ground that his counsel violated his Sixth Amendment
rights, namely the “[a]utonomy to decide that the objective
 CHRISTIAN V. THOMAS 15

of the defense is to assert innocence.” 8 Id. at 1508. The
Court held that counsel could not “override” and “interfere”
with a defendant’s decision to maintain innocence, provided
that the client gave “express statements of [his] will” to do
so prior to trial. Id. at 1509. Counsel is nonetheless
permitted to “focus his own collaboration on urging”
alternative theories, such as arguing that the defendant’s
“mental state weighed against conviction.” Id.

The Court elaborated on the proper division of labor
between counsel and client: “With individual liberty—and,
in capital cases, life—at stake, it is the defendant’s
prerogative, not counsel’s, to decide on the objective of his
defense: to admit guilt in the hope of gaining mercy at the
sentencing stage, or to maintain his innocence, leaving it to
the State to prove his guilt beyond a reasonable doubt.” 9 Id.
at 1505. With that said, the defendant’s right to maintain
innocence “should not displace counsel’s . . . trial
management role[].” Id. at 1509. Counsel is permitted to
determine “what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude
regarding the admission of evidence,” id. at 1508 (citations
omitted), along with “choosing the basic line of defense,
moving to suppress evidence, delivering an opening
statement and deciding what to say in the opening, objecting
to the admission of evidence, cross-examining witnesses,
offering evidence and calling defense witnesses, and
deciding what to say in summation,” id. at 1516 (Alito, J.,
8
The Supreme Court relied on the Assistance of Counsel Clause:
“In all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
9
The client is also entitled to decide “whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”
McCoy, 138 S. Ct. at 1508.
16 CHRISTIAN V. THOMAS

dissenting) (citing New York v. Hill, 528 U.S. 110, 114–15
(2000)).

The Supreme Court clarified that deprivation of this
constitutional right is a “structural error,” and not one falling
within the purview of the Court’s “ineffective-assistance-of-
counsel jurisprudence.” Id. at 1510–11 (majority opinion).
The Supreme Court did not express whether this rule would
be retroactively applicable on collateral review.

2

Applications for leave to file SOS petitions pursuant to
Section 2244(b)(2)(A) may not be authorized unless the
intervening new constitutional rule has been “made
retroactive to cases on collateral review by the Supreme
Court.” “[T]he Supreme Court is the only entity that can
make a new rule retroactive.” Tyler v. Cain, 533 U.S. 656,
663 (2001). “The Supreme Court can make a rule retroactive
explicitly or through a combination of holdings that
‘logically dictate’ the new rule’s retroactivity.” Young v.
Pfeiffer, 933 F.3d 1123, 1125 (9th Cir. 2019) (citations
omitted).

The Supreme Court will not hold a new constitutional
rule of criminal procedure to be retroactively applicable on
collateral review unless it falls within two narrow
exceptions. Teague v. Lane, 489 U.S. 288, 310 (1989). The
first is for substantive rules that proscribe the criminalization
of particular individual conduct. Id. at 307. The second

is for watershed rules of criminal procedure
implicating the fundamental fairness and
accuracy of the criminal proceeding. To fall
within this exception, a new rule must meet
two requirements: Infringement of the rule
 CHRISTIAN V. THOMAS 17

must seriously diminish the likelihood of
obtaining an accurate conviction, and the rule
must alter our understanding of the bedrock
procedural elements essential to the fairness
of a proceeding.

Tyler, 533 U.S. at 665 (quotation marks and citations
omitted). Absent an explicit statement on retroactivity,
“[t]he Court . . . can be said to have ‘made’ a rule retroactive
within the meaning of § 2244(b)(2)(A) only where the
Court’s holdings logically permit no other conclusion than
that the rule is retroactive.” Tyler, 533 U.S. at 669
(O’Connor, J., concurring) (“[I].e., the holdings must dictate
the conclusion and not merely provide principles from which
one may conclude that the rule applies retroactively.”).

The Supreme Court has not explicitly made McCoy
retroactive. McCoy was heard on direct appeal rather than
collateral review, and the U.S. Supreme Court did not
discuss retroactivity. McCoy, 138 S. Ct. at 1507. Nor has
the Supreme Court in any subsequent decision held McCoy
to be explicitly retroactive.

Neither is McCoy’s retroactivity logically dictated by a
combination of holdings from multiple Supreme Court
cases. Christian does not cite to any Supreme Court holdings
that might lend themselves to that conclusion. He argues
only that we should conclude that McCoy’s right to maintain
innocence is a watershed rule of criminal procedure because
its withholding, like the right to counsel, “vitiates the
fairness of the conviction.” Reply Br. 14–15 (citing Mackey
v. United States, 401 U.S. 667, 693–94 (1971)). That may
or may not be the case—that is for the Supreme Court to
decide. We may consider only whether the Supreme Court
18 CHRISTIAN V. THOMAS

has yet done so, either explicitly or through two or more
holdings that in combination perform a logical proof.

To prove retroactivity absent an explicit holding, “[t]he
relationship between the conclusion that a new rule is
retroactive and the holdings that make this rule retroactive
. . . must be strictly logical.” Tyler, 533 U.S. at 669
(O’Connor, J., concurring) (emphasis added). For example,
in McCoy, the Supreme Court held that the denial of a
defendant’s Sixth Amendment right to maintain innocence
is a “structural” error and held that overriding the client’s
decision as to the objective of the defense was a “[v]iolation
of a defendant’s Sixth Amendment-secured autonomy.”
McCoy, 138 S. Ct. at 1511. Such a rule could be logically
retroactive if, for instance, the Supreme Court had
previously held that “all newly discovered Sixth
Amendment rights are retroactive,” or if it had held that “all
new rights whose deprivation result in structural errors are
watershed rules of criminal procedure.” The Supreme Court
would not then have had to state explicitly that McCoy was
retroactive: that conclusion would be logically inescapable
based upon the interaction of either of those two premises
with McCoy’s holding.

But Christian does not establish a strictly logical
relationship between McCoy and another Supreme Court
holding. He points to no case that necessarily dictates that
all structural errors are coincident with Teague’s permitted
category of retroactive rights. In fact, the Supreme Court has
said otherwise: “[A] holding that a particular error is
structural does not logically dictate the conclusion that the
second Teague exception has been met.” Tyler, 533 U.S.
at 666–67. Neither does Christian cite to any Supreme Court
case deeming all Sixth Amendment rights to be watershed
rules of criminal procedure implicating the fundamental
 CHRISTIAN V. THOMAS 19

fairness and accuracy of the criminal proceeding. As such,
Christian fails to show that McCoy has logically been made
retroactive. We therefore conclude that the Supreme Court
has not made McCoy v. Louisiana retroactive to cases on
collateral review.

3

Even if we were to hold that McCoy is retroactive,
Christian’s petition does not sufficiently rely on McCoy so
as to present a prima facie case for relief.

“[Section] 2244(b) calls for a permissive and flexible,
case-by-case approach to deciding whether a second or
successive habeas corpus petition ‘relies on’ a qualifying
new rule of constitutional law. We ask whether the rule
substantiates the movant’s claim, even if the rule does not
conclusively decide the claim, or if the rule would need a
non-frivolous extension for the petitioner to get relief.”
Spearman, 899 F.3d at 706 (9th Cir. 2018) (cleaned up).

For Christian’s application to be substantiated by
McCoy, he must show at the very least that his counsel
conceded to his guilt at trial. Christian argues that Ranken,
defying his instructions, changed strategy mid-trial to
forward a theory of self-defense before the jury during
closing arguments. According to Christian, Ranken’s
statements relating to the alternative self-defense argument
ran so counter to the third-man argument pursued during trial
as to have effectively conceded Christian’s guilt. He asserts
that this de-facto concession of guilt deprived him of his
right under McCoy to maintain innocence. We do not agree.

Unlike McCoy’s counsel, Ranken never conceded
Christian’s guilt. Ranken never relieved the prosecution of
its burden. Indeed, throughout the trial, Ranken argued that
20 CHRISTIAN V. THOMAS

Christian was innocent and contested the state’s
identification of Christian as the one who stabbed
Cabaccang.

Moreover, Ranken repeatedly and explicitly prefaced his
self-defense argument as relevant only if the jury concluded
that Christian had stabbed Cabaccang. Ranken’s intention
to argue in the alternative was clear as day: “I’m going to
assume now for the sake of argument;” “just in case you do
get beyond that question that you don’t find a reasonable
doubt as to who did it;” “if [Christian] was the one who did
it.” Trial Tr., Dkt. 2 at 97, 111. No reasonable member of
the jury could view a self-defense argument couched in these
terms as tantamount to a concession of guilt.

Additionally, McCoy makes clear that counsel does not
interfere with the objective of the defense by arguing
alternative theories if he does so in the pursuit of acquittal.
McCoy, 138 S. Ct. at 1508–09 (“[Counsel] could not
interfere with [a defendant’s] telling the jury ‘I was not the
murderer,’ although counsel could, if consistent with
providing effective assistance, focus his own collaboration
on urging that [a defendant’s] mental state weighed against
conviction.”). While McCoy safeguards the client’s
authority to determine the “objective of the defense,” the
Supreme Court made sure to state that its holding did not
displace counsel’s trial management role, including in
deciding “what arguments to pursue.” Id. at 1508 (citations
omitted).

Urging a jury to consider self-defense as an alternative
argument does not amount to a concession of guilt. Ranken
did not relieve the state of its burden to prove Christian’s
guilt beyond a reasonable doubt. Moreover, Ranken’s
objective in arguing self-defense was identical to
Christian’s: acquittal. His objective was not, as it was in
 CHRISTIAN V. THOMAS 21

McCoy, to forsake acquittal in hopes of obtaining a lighter
sentence. We hold that counsel does not violate a
defendant’s Sixth Amendment rights under McCoy simply
by arguing self-defense in the alternative.

IV

Christian’s Rule 60(d) filing before the district court
asserted a federal basis for relief from his state conviction,
and thus made a claim covered by 28 U.S.C. § 2244(b). The
filing was properly referred to us and we construe it as an
application for authorization to file a second or successive
petition for writ of habeas corpus. Christian’s application
does not make the required prima facie showing pursuant to
28 U.S.C. § 2244(b)(2). He does not show that McCoy was
made retroactive on collateral review by the Supreme Court
nor that his proposed petition would rely on McCoy’s rule.

DENIED.