FILED
NOT FOR PUBLICATION
AUG 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD LLOYD, No. 14-56239
Petitioner-Appellant, D.C. No.
2:13-cv-06129-JAK-JPR
v.
VINCENT ADAMS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted August 4, 2016**
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Petitioner Leonard Lloyd appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition. The facts of this case are known to the parties, and
we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
Lloyd argues that the state court unreasonably applied clearly established
federal law and unreasonably determined the facts when it held that Lloyd had not
demonstrated prejudice “sufficient to undermine confidence in the outcome” from
his lawyer’s failure to call Charde Ray as a witness. See Strickland v. Washington,
466 U.S. 668, 694 (1984). Lloyd’s argument fails.
Ray’s testimony concerning the shooter’s height would have been
cumulative. Although it is true that Ray stated that she believed the shooter to be
shorter than 6’4”, no fewer than three witnesses testified similarly. At most, Ray
merely repeated Tammy Favazza’s description of the shooter’s height and her
uncertainty that such a description was correct. As such, Ray’s testimony “would
have offered [only] an insignificant benefit, if any at all.” Wong v. Belmontes, 558
U.S. 15, 23 (2009). Moreover, Ray’s testimony also may have hurt Lloyd’s case
more than helped it, by corroborating various prosecution witnesses who stated the
shooter was Hispanic, that the shooter wore a black hoodie like one regularly worn
by Lloyd, and that the killings were race-related.
Lloyd’s argument that his attorney promised to call Charde Ray also lacks
merit. Read in context, counsel’s mention of Ray was clearly an attempt to point
out weaknesses in the prosecution’s case, nothing more. But even assuming
counsel meant to convey an intention to call Ray, that expressed intention was only
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conditional. Such a “lack of certainty is fatal to . . . [a] claim that a promise was
made.” Saesee v. Mcdonald, 725 F.3d 1045, 1050 (9th Cir. 2013).
AFFIRMED.
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