NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERON D. HALL, No. 19-35248
Petitioner-Appellant, D.C. No. 2:14-cv-00569-SB
v.
MEMORANDUM*
MARK NOOTH,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 6, 2021
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Theron Hall, an Oregon state prisoner, appeals the district court’s denial of
his habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
§ 2253, and we affirm.
We review a district court’s denial of a § 2254 petition de novo. Cain v.
Chappell, 870 F.3d 1003, 1012 (9th Cir. 2017). To establish ineffective assistance
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of counsel, Hall must demonstrate both deficient performance and prejudice under
Strickland v. Washington, 466 U.S. 668, 687 (1984). Hall’s petition is also governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which bars
relief unless the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or was “based on an unreasonable determination of the facts.”
28 U.S.C. § 2254(d). When, as here, the decision of the highest state court is
unreasoned, we “‘look through’ the unexplained decision to the last related state-
court decision that does provide a relevant rationale . . . [and] then presume that the
unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018). Here, the last reasoned decision is the decision of the Oregon
circuit court that denied Hall’s petition for post-conviction relief.
We assume without deciding that Hall can show deficient performance and
that none of his claims are procedurally defaulted. Even so, Hall cannot show
prejudice. To make that showing, Hall had to demonstrate that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “The likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). And under AEDPA,
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the state court’s resolution of the Strickland prejudice inquiry must be objectively
unreasonable. Cullen v. Pinholster, 563 U.S. 170, 202 (2011).
In this case, the state court could reasonably conclude that even if counsel was
deficient in pursuing a guilty except for insanity (GEI) defense instead of an
intoxication defense, or that counsel acted deficiently in the manner in which they
advanced the GEI defense, the result would not have been different given the
overwhelming evidence that Hall intended to shoot Hernandez-Sanchez. Among
other things, Hall earlier in the evening announced his intention to “pop” someone
to get money. He later put a gun to Hernandez-Sanchez’s head, shooting him at
point-blank range. And while Hall claims an intoxication defense would have
succeeded, the evidence that Hall was intoxicated was mixed at best. It would
therefore not be objectively unreasonable for the state habeas court to conclude that
the result of Hall’s proceeding would not have been different absent counsel’s
claimed ineffectiveness.
AFFIRMED.
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