NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GOMEZ, No. 20-15088
Petitioner-Appellant, D.C. No. 3:18-cv-03021-EMC
v.
MEMORANDUM*
SCOTT FRAUENHEIM, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted March 9, 2022
San Francisco, California
Before: S.R. THOMAS, McKEOWN, and GOULD, Circuit Judges.
Juan Gomez seeks review of a district court judgment denying his petition for
a writ of habeas corpus. We certified for appeal the question of whether Gomez’s
“trial counsel provided ineffective assistance by conceding guilt on all three counts
of oral copulation with a child.” We have jurisdiction under 28 U.S.C. §§ 1291 and
2253. We review de novo a district court’s denial of a habeas petition, see Lopez v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), including claims of
ineffective assistance of counsel, see Womack v. Del Papa, 497 F.3d 998, 1002 (9th
Cir. 2007). Where, as here, the district court was reviewing a state court ruling on
the merits of a federal claim, we review the state court’s ruling to determine whether
it was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law,” or (2) “based on an unreasonable determination of facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
In his appellate briefing, Gomez argues that the California Court of Appeal
erred because it failed to apply the rule from United States v. Cronic, which holds
that a “presumption of prejudice is appropriate without inquiry into the actual
conduct of the trial” where there has been an effectively complete denial of counsel,
such as when “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” 466 U.S. 648, 659–60 (1984).
Yet Gomez failed to properly raise his Cronic claim prior to his appellate
briefing. His federal habeas petition raised only a claim under Strickland v.
Washington, 466 U.S. 668 (1984). “It is a well-established principle that in most
instances an appellant may not present arguments in the Court of Appeals that it did
not properly raise in the court below.” Rothman v. Hosp. Serv. of S. Cal., 510 F.2d
956, 960 (9th Cir. 1975). And while Gomez’s state court briefing (which was
included with his federal habeas petition) did cite Cronic once, this was a throwaway
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citation to support a general point about the Sixth Amendment and not Cronic’s
presumption of prejudice. Cf. Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir.
2005) (“Exhaustion demands more than drive-by citation, detached from any
articulation of an underlying federal legal theory.”). The Supreme Court has made
clear that the “difference” between “the rule of Strickland and that of Cronic … is
not of degree but of kind,” Bell v. Cone, 535 U.S. 685, 697 (2002), so raising
Strickland is insufficient to properly raise Cronic.
Turning to Gomez’s Strickland claim, we conclude that he cannot overcome
the highly deferential standard of review. To prevail under Strickland, a petitioner
must show that (1) “counsel’s representation fell below an objective standard of
reasonableness” (i.e., deficiency), 466 U.S. at 688, and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different” (i.e., prejudice), id. at 694. Yet when we review a lower
court holding that there was no ineffective assistance of counsel, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking when defense counsel’s performance
fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
“[T]he question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 105.
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The answer to this question is yes. The California Court of Appeal concluded
that Gomez’s appeal fails on the prejudice prong. It relied on a line of state cases
suggesting that a defense attorney may concede her client’s guilt on a lesser charge
as a tactical strategy to avoid a guilty verdict for the greater charge. The district
court held that such a conclusion was “not unreasonable.” We agree. Federal
precedent echoes the state cases cited by the Court of Appeal. See United States v.
Thomas, 417 F.3d 1053, 1058–59 (9th Cir. 2005); United States v. Bradford, 528
F.2d 899, 900 (9th Cir. 1975). Even in United States v. Swanson, on which Gomez
relies heavily, we “recognize[d] that in some cases a trial attorney may find it
advantageous to his client’s interests to concede certain elements of an offense or
his guilt of one of several charges.” 943 F.2d 1070, 1075–76 (9th Cir. 1991).
In light of our precedent, there is a “reasonable argument” that defense
counsel’s concessions were non-prejudicial and that counsel thus “satisfied
Strickland’s deferential standard” on appeal. Harrington, 562 U.S. at 105.
Therefore, Gomez’s ineffective assistance of counsel argument fails.
AFFIRMED.
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