Michael Shukry v. M. Evans , 584 F. App'x 525 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL JAMES SHUKRY, No. 12-15119
Petitioner - Appellant, D.C. No. 2:09-cv-00669-JKS
v.
MEMORANDUM*
M. S. EVANS,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Submitted August 12, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, and SILVERMAN and CLIFTON, Circuit
Judges.
Michael James Shukry appeals from the district court’s denial of his 28
U.S.C. § 2254 petition for habeas corpus. We conclude that Shukry’s ineffective
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
assistance of counsel claim does not survive the doubly deferential standard of
review applicable to an ineffective assistance of counsel claim under AEDPA, 28
U.S.C. § 2254(d). Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Accordingly,
we affirm.
Shukry has not shown that the Sacramento Superior Court unreasonably
applied Strickland v. Washington, 466 U.S. 668, 687, 691 (1984), or made an
unreasonable determination of the facts of Shukry’s case when it rejected his
ineffective assistance of counsel claim. Shukry’s trial attorney’s strategic decision
to eschew the roof fall version of events as a defense theory was not professionally
deficient. It was a reasonable judgment that presenting Shukry’s third version of
events would have been unlikely to persuade the jury and would have damaged
Shukry’s credibility generally. The defense that counsel presented, though
ultimately unsuccessful, was not as implausible as Shukry now asserts. The
prosecution’s medical experts admitted that some of the boy’s injuries could have
occurred up to three days before he died, lending support to counsel’s theory that
there was doubt that the injuries were inflicted when Shukry was taking care of
him.
Additionally, Shukry was not prejudiced by trial counsel’s decision. The
sheer number of bruises and injuries on the victim’s body corroborated strongly
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with physical assault. Given the lateness of Shukry’s roof story and the medical
experts’ unanimous conclusion that the boy was a victim of child abuse, there was
not a “reasonable probability” that the jury would have found Shukry not guilty
even if counsel had pursued the roof story. See id. at 695. At a minimum, that was
a question as to which fairminded jurists could disagree. The state court’s
adjudication of the claim was not unreasonable.
AFFIRMED.
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