Aurelio Saldivar v. Lewis ( 2018 )


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  •                             NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                         JUN 25 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    AURELIO FIDENCIO SALDIVAR,                       No.    15-55829
    Petitioner-Appellant,            D.C. No.
    2:13-cv-07757-JLS-AS
    v.
    G. D. LEWIS, Warden,                             MEMORANDUM*
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Josephine L. Staton, District Judge, Presiding
    Argued and Submitted June 6, 2018
    Pasadena, California
    Before: LIPEZ,** NGUYEN, and OWENS, Circuit Judges.
    Petitioner-Appellant Aurelio Fidencio Saldivar appeals from the denial of
    his petition for a writ of habeas corpus. As the parties are familiar with the facts,
    we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and
    we affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Kermit V. Lipez, United States Circuit Judge for the
    First Circuit, sitting by designation.
    1. Ineffective-Assistance Claim. Contrary to petitioner’s argument, the
    Supreme Court has never clearly resolved whether, in assessing the competence of
    counsel’s representation under the Sixth Amendment, an appellate court may
    consider hypothetical strategic rationales for counsel’s conduct and, if so, whether
    a defendant must negate every such rationale to demonstrate Strickland deficiency.
    There being no such precedent, petitioner’s argument that the court of appeal’s
    application of the standard from People v. Lucas, 
    907 P.2d 373
    , 389 (Cal. 1995),
    was “contrary to . . . clearly established Federal law, as determined by the Supreme
    Court of the United States,” 28 U.S.C. § 2254(d)(1), necessarily fails. See, e.g.,
    Marshall v. Rodgers, 
    569 U.S. 58
    , 61–64 (2013) (per curiam); Knowles v.
    Mirzayance, 
    556 U.S. 111
    , 122 (2009).
    As to the court of appeal’s determination that most of the purported errors by
    petitioner’s trial counsel did not amount to constitutional deficiencies, petitioner
    has failed to demonstrate “an error well understood and comprehended in existing
    law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
    
    562 U.S. 86
    , 103 (2011). And as to those errors the court held to be constitutional
    deficiencies, petitioner has failed to show that the court of appeal was “necessarily
    unreasonable” in concluding that the evidence against him was overwhelming and
    that counsel’s deficiencies therefore neither independently nor cumulatively
    2
    prejudiced him. Cullen v. Pinholster, 
    563 U.S. 170
    , 190 (2011).1
    2. Due-Process Claim. Even assuming that the state trial court’s erroneous
    use of CALCRIM 1603 and its failure to provide a theft instruction violated
    petitioner’s due-process rights, the errors did not have a “substantial and injurious
    effect” on the jury’s verdict, either individually or cumulatively. Brecht v.
    Abrahamson, 
    507 U.S. 619
    , 637–38 (1993) (citation omitted); see also Dixon v.
    Williams, 
    750 F.3d 1027
    , 1034–35 (9th Cir. 2014) (per curiam). Nor did these
    purported instructional errors, considered cumulatively with the deficiencies the
    California court of appeal identified in petitioner’s trial counsel’s performance,
    prejudice petitioner’s case. See 
    Brecht, 507 U.S. at 637
    –38.
    3. Petitioner’s Request for Judicial Notice (Dkt. No. 22) is granted.
    AFFIRMED.
    1
    Contrary to petitioner’s suggestions that we analyze the court of appeal’s
    Strickland holdings under both § 2254(d)(1)’s “unreasonable application” prong
    and § 2254(d)(2), federal habeas review of a state court’s Strickland analysis is
    properly situated under the former. See, e.g., 
    Richter, 562 U.S. at 101
    ; 
    Cullen, 563 U.S. at 190
    –203.
    3
    

Document Info

Docket Number: 15-55829

Filed Date: 6/25/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021