Zane Dickinson v. David Shinn ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZANE DICKINSON, No. 20-15175
Petitioner-Appellant,
D.C. No.
v. 3:18-cv-08037-
MTL
DAVID SHINN, Director; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted November 19, 2020
Phoenix, Arizona
Filed June 22, 2021
Before: Richard C. Tallman, Jay S. Bybee, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Bade
2 DICKINSON V. SHINN
SUMMARY *
Habeas Corpus
The panel affirmed the district court’s denial of Zane
Dickinson’s habeas corpus petition challenging his Arizona
state court conviction for attempted second-degree murder
in a case in which the trial court misstated Arizona law in its
instructions to the jury by implying that a defendant could
be guilty of attempted second-degree murder if he merely
intended to cause serious physical injury, not death.
Trial counsel failed to object to the erroneous instruction.
With different counsel, Dickinson unsuccessfully
challenged the error on direct appeal. He petitioned for state
post-conviction relief, but his counsel did not raise any
claims related to the instructional error, and the state trial and
appellate courts denied relief. The district court denied
Dickinson’s federal habeas corpus petition, declining to
excuse Dickinson’s procedural default of these claims.
In this appeal, Dickinson asked this court to excuse his
procedural default under Martinez v. Ryan, 566 U.S. 1(2012), so that he could seek habeas relief on the basis of
constitutionally ineffective assistance of trial counsel
(IATC).
Dickinson asserted two theories in an effort to establish
prejudice and excuse the procedural default.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DICKINSON V. SHINN 3
He argued that his trial counsel’s failure to object
prejudiced him because it deprived him of a more favorable
standard of review on direct appeal. Rejecting this theory on
a different ground than the district court did, the panel held
that as a matter of federal law, Dickinson cannot satisfy
Strickland’s prejudice requirement for his IATC claim
merely by showing that trial counsel’s failure to object to a
jury instruction deprived him of a more favorable standard
of review on direct appeal.
Dickinson also argued that his IATC claim is substantial
because his trial counsel’s failure to object to the erroneous
instruction prejudiced him at trial. The panel noted that the
record amply supports the Arizona Court of Appeals’
characterization of the trial, and held that Dickinson cannot
demonstrate a reasonable probability that the trial would
have had a different outcome without the erroneous
instruction, where the jury heard overwhelming evidence
that Dickinson intended to kill the victim, it heard only a few
passing comments that it could have conceivably construed
as evidence that Dickinson did not intend to kill the victim,
and neither the State nor defense counsel ever suggested that
Dickinson intended only to cause serious physical injury.
COUNSEL
Molly A. Karlin (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant.
Jillian B. Francis (argued) and Jason D. Lewis, Assistant
Attorneys General; J.D. Nielsen, Habeas Unit Chief; Mark
4 DICKINSON V. SHINN
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Respondents-Appellees.
OPINION
BADE, Circuit Judge:
During Zane Dickinson’s trial for attempted second-
degree murder, the court misstated Arizona law in its
instructions to the jury, and his trial counsel failed to object
to the erroneous instruction. With different counsel,
Dickinson challenged the error on direct appeal; the Arizona
Court of Appeals affirmed his conviction and the Arizona
Supreme Court denied review. Dickinson petitioned for
state post-conviction relief, but his counsel did not raise any
claims related to the instructional error. After the state trial
and appellate courts denied relief, Dickinson filed a petition
for a writ of habeas corpus in federal district court, pursuant
to 28 U.S.C. § 2254, asserting claims based on the erroneous
instruction. The district court declined to excuse
Dickinson’s procedural default of these claims. In this
appeal, Dickinson asks us to excuse his procedural default
so that he can seek habeas relief on the basis of
constitutionally ineffective assistance of trial counsel. We
conclude that he has not established a basis to excuse the
procedural default of these claims, and we affirm.
I
In 2011, Dickinson was indicted in Mohave County
Superior Court on one count of attempted second-degree
murder, two counts of aggravated assault, and one count of
leaving the scene of an accident. The indictment alleged that
the victim was riding his bicycle when Dickinson repeatedly
DICKINSON V. SHINN 5
attempted to run over him with his truck. Dickinson pleaded
not guilty to all counts.
At trial, Dickinson’s counsel argued that Dickinson was
not present when the crime occurred and that he was
mistaken for the perpetrator. In his opening statement,
Dickinson’s counsel described how July 2, 2011 was a
“perfectly ordinary day” for Dickinson, who spent the
morning attending a swap meet and visiting a friend before
returning home. “The next thing he knows, the police show
up, he’s being accused of a crime, he’s being handcuffed
behind his back and treated like a criminal, he’s being
thrown in the back of a cruiser, still not really sure what is
going on.”
During the State’s case-in-chief, the victim testified that
he had known Dickinson for over twenty years, that they
were friends, and that he had loaned Dickinson “[a] weed
eater and some other tools” to do “side jobs for yards and
stuff.” After the victim learned that Dickinson failed to
complete a job despite accepting an advance payment, he
decided he wanted his tools back, and the two friends had a
falling-out when Dickinson refused to return them. The
victim recounted that several weeks before the attack, the
two got into a fistfight and Dickinson “pulled a knife on
[him]” after the victim knocked Dickinson down.
The victim stated that on July 2, he “was riding [his] bike
around” when he spotted Dickinson’s truck in front of his
friend Brett Altizer’s house. The victim got off his bike and
“walk[ed] by the truck,” and then he saw Dickinson “pull[]
out this ax, and he’s coming at me,” so the victim pulled out
6 DICKINSON V. SHINN
a baseball bat he kept on his bike. 1 He stated that Dickinson
was cursing at him and “telling [him] he’s going to kill
[him],” but Altizer intervened and stopped the fight. The
victim “proceeded to put [his] bat away”; “eventually
[Dickinson] put the ax away,” and the victim “apologized to
the guy for bringing problems to his house, . . . got on his
bike[,] and rode away.”
About ten minutes later, as he rode toward his house, he
saw Dickinson driving his truck. He testified:
I looked up and I seen him, and the last
thing in my head is, he smiled. So next thing
I know, he revved up his motor and he shot
towards me. And I remember what
happened. He hit the back of my bike, he had
spun me all the way around about ten feet in
the dirt. I landed on the dirt. . . .
[Then] this white truck pulls in front and
stops him, I get back on my bike and I take
off towards my house. . . .
I got on my bike; I just took off riding. . . .
I think I lost him, right; and all of a sudden I
hear his motor revving up, and I look back
and he’s no more than maybe a foot from my
bumper, and he’s laughing, so I realize
what’s going on.
The victim tried to turn toward a fence, but as he described
at trial, “When I go to do that, at the same time he turns his
1
The victim stated that he regularly carried a bat for protection
because “the area was really bad about dogs.”
DICKINSON V. SHINN 7
wheel and hit[s] my bike; and that’s the last thing I
remember, and I wake up in the hospital.” The victim also
recounted that during the attack, Dickinson “had that look in
his face like, you know, he was going to kill me.”
Altizer, who broke up the fight between Dickinson and
the victim on his property shortly before the attack, testified
that “[e]arlier that morning” on the day of the attack,
Dickinson “said, ‘I’m going to run him over.’” Altizer
testified that after the attack Dickinson returned to his house,
“tossed [him] the keys, and was saying something about ‘he
did it.’”
The jury also heard evidence that the victim sustained
multiple injuries including a concussion, other head injuries
requiring thirteen stitches, and a broken ankle, that his
“funny bone was ripped out” from his elbow, and that his
biceps and triceps muscles were separated from the bone in
one arm.
Defense counsel did not call any witnesses or present any
evidence. Instead, he focused on trying to undermine the
credibility of the State’s witnesses. For example, during his
cross-examination of the victim, defense counsel elicited
that the victim had a prior felony conviction, that the victim
had been taking pain medications ever since the attack, and
that the victim had filed a claim against Dickinson’s
insurance. Defense counsel also questioned the victim about
the distance between him and the truck when he saw it during
the attack, as well as how long the victim was able to see the
driver.
Similarly, defense counsel attempted to discredit Robert
Todd, an eyewitness who closely corroborated the victim’s
account of the attack, by questioning him at length about
medications that he took, and casting doubt on whether the
8 DICKINSON V. SHINN
witness got a good enough look at the driver of the truck to
conclude it was Dickinson. Similarly, defense counsel
extensively questioned the testifying police officers and
investigators about their training, and about how they
investigated this case.
In his closing argument, defense counsel offered an
alternative account:
What really happened—really happened
was [Brett] Altizer, where Zane had left his
truck and his keys, takes Zane’s truck and is
driving down the street they are talking
about, and he struck [the victim]. Maybe he
got frightened and he left the scene. [The
victim] calls, because they are friends, we
know they are friends. Brett told you that he
was a friend of [the victim], or at least an
acquaintance of [the victim]. So why didn’t
you stop? You hit me driving Zane’s truck?
And at that point it sinks in amongst the
three of them, because Brett knew Zane had
insurance, he told you that; but he had taken
that truck without the owner’s permission.
He asserted that Altizer and the victim then discussed the
accident and decided to blame Dickinson. He also argued
that there was “bad blood” between Dickinson and these
witnesses, and that the victim’s “chances are going to be
quite a bit better with the insurance company if [Dickinson]
is convicted of attempted murder, felony assault, leaving the
scene of the accident by a jury of his peers.” He spent the
remainder of his argument attempting to undermine the other
witnesses’ credibility, discussing alleged “inconsistencies in
DICKINSON V. SHINN 9
their stories,” arguing that the police investigation was a
“comedy of errors” involving “at least 12 substantial things
they didn’t do” properly, and arguing there was inadequate
evidence of the extent of the victim’s injuries.
At the conclusion of the three-day trial, the trial court
instructed the jury on the second-degree murder charge as
follows:
The crime of attempted second degree
murder has three elements. In order to find
the defendant guilty of attempted second
degree murder, you must find that, number
one, the defendant intentionally did some act;
and number two, the defendant believed such
act was a step in the course of conduct
planned to culminate in the commission of
the crime of second degree murder; and
number three, the defendant did so with the
mental state required for the commission of
the crime of second degree murder.
It is not necessary that you find that the
defendant committed the crime of second
degree murder; only that he attempted to
commit such crime.
The crime of second degree murder has
the following elements: Number one, the
defendant caused the death of another person;
and number two, the defendant either, A, did
so intentionally or, B, knew that his conduct
would cause death or serious physical injury.
10 DICKINSON V. SHINN
By implying that a defendant could be guilty of attempted
second-degree murder if he merely intended to cause serious
physical injury, not death, this instruction contradicted
Arizona precedent holding that “[t]he offense of attempted
second-degree murder requires proof that the defendant
intended or knew that his conduct would cause death.” State
v. Ontiveros, 81 P.3d 330, 333 (Ariz. Ct. App. 2003).
However, Dickinson’s counsel did not object to the
instruction.
The jury returned a general verdict finding Dickinson
guilty on all counts. The court imposed concurrent sentences
of twelve years’ imprisonment on the attempted second-
degree murder count, and nine and seven years respectively
on the two aggravated assault counts; it also imposed a two-
year sentence, to be served consecutively to the other
sentences, for leaving the scene of an accident.
On direct appeal, Dickinson was represented by a
different attorney, and he challenged the attempted second-
degree murder conviction, arguing that the jury instruction
was erroneous under Ontiveros. Because Dickinson failed
to preserve the issue for appeal, the Arizona Court of
Appeals applied a “fundamental error” standard of review,
placing the burden on Dickinson to “establish that (1) error
exists, (2) the error is fundamental, and (3) the error caused
him prejudice.” State v. Dickinson, 314 P.3d 1282, 1285
(Ariz. Ct. App. 2013) (quotation marks and citation omitted).
Although the Arizona Court of Appeals agreed that the
instruction was erroneous and that the error was
fundamental, it held that Dickinson had not carried his
burden of showing prejudice. Id. at 1285–88. Dickinson and
the State both unsuccessfully petitioned the Arizona
Supreme Court for review.
DICKINSON V. SHINN 11
Dickinson then filed a petition for state post-conviction
relief through counsel, raising two claims that were both
unrelated to the instructional error. The trial court denied
relief on both claims. Dickinson filed a pro se petition for
review with the Arizona Court of Appeals, arguing that his
post-conviction counsel had represented him ineffectively.
The Arizona Court of Appeals denied the petition, finding
that the trial court had correctly denied relief on the two
claims counsel raised and that Dickinson had no right to
effective assistance of post-conviction counsel under
Arizona law.
In February 2018, Dickinson filed a timely pro se
petition pursuant to 28 U.S.C. § 2254 in federal district
court, seeking a writ of habeas corpus. He raised two
grounds for relief: (1) that the erroneous jury instruction
violated his Fourteenth Amendment due process rights; and
(2) that his trial counsel’s failure to object to the jury
instruction deprived him of his Sixth Amendment right to the
effective assistance of counsel. While the petition was
pending, Dickinson filed a motion for the appointment of
counsel, which the magistrate judge granted.
After additional briefing, the magistrate judge issued a
report and recommendation (R&R) in which she
recommended that relief be denied as to Dickinson’s due
process claim and granted as to his ineffective assistance of
counsel claim. She concluded that although both claims
were procedurally defaulted, the default was excused as to
the ineffective assistance claim under Martinez v. Ryan,
566 U.S. 1 (2012).
The district court accepted the magistrate judge’s R&R
as to Dickinson’s due process claim but rejected it as to his
ineffective assistance of counsel claim, thus denying relief
on both grounds. The district court also disagreed with the
12 DICKINSON V. SHINN
magistrate judge’s prejudice analysis under Strickland v.
Washington, 466 U.S. 668 (1984). The district court held
that the relevant question was not whether Dickinson could
have prevailed on appeal in obtaining a new trial, but only
whether Dickinson would have prevailed at trial but for the
error, and that Dickinson had not met Strickland’s standard
for showing prejudice at trial. Because the district court
concluded that Dickinson’s ineffective assistance of trial
counsel (IATC) claim was not “substantial” under Martinez,
it denied Dickinson’s claim, holding both that his procedural
default was not excused and that the claim failed on the
merits. However, the district court granted a certificate of
appealability on “whether an inquiry into trial counsel’s
effectiveness under Strickland includes an evaluation of
whether the direct appeal would have been different, but for
trial counsel’s missteps,” and “whether Strickland in this
context allows prejudice to be found solely because the court
cannot know the legal theory under which the jury convicted
the defendant.” Dickinson timely appealed.
II
We review “de novo a district court’s decision regarding
habeas relief, including questions regarding procedural
default.” Jones v. Shinn, 943 F.3d 1211, 1219–20 (9th Cir.
2019). “Ineffective assistance of counsel claims are mixed
questions of law and fact which we also review de novo.”
Id. at 1220.
III
We begin with an overview of the relevant legal
framework before addressing Dickinson’s arguments for
excusing his procedural default. In general, “[f]ederal
habeas courts reviewing convictions from state courts will
not consider claims that a state court refused to hear based
DICKINSON V. SHINN 13
on an adequate and independent state procedural ground.”
Davila v. Davis, 137 S. Ct. 2058, 2062 (2017); see Coleman
v. Thompson, 501 U.S. 722, 747–48 (1991). However, the
Supreme Court has recognized “a narrow exception” to this
so-called procedural default rule when a petitioner “can
establish ‘cause’ to excuse the procedural default and
demonstrate that he suffered actual prejudice from the
alleged error.” Davila, 137 S. Ct. at 2062. The Court
explained:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in
an initial-review collateral proceeding, a
procedural default will not bar a federal
habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the
initial-review collateral proceeding, there
was no counsel or counsel in that proceeding
was ineffective.
Martinez, 566 U.S. at 17. 2
To satisfy Martinez’s “cause” prong based on post-
conviction counsel’s failure to raise a claim, a petitioner
must show that post-conviction counsel was ineffective
under the standards of Strickland. Martinez, 566 U.S. at 14.
A petitioner cannot satisfy this requirement if the underlying
“ineffective-assistance-of-trial-counsel claim is
insubstantial, i.e., it does not have any merit or [] it is wholly
without factual support, or [] the attorney in the initial-
review collateral proceeding did not perform below
constitutional standards.” Id. at 16; see Sexton v. Cozner,
2
Arizona courts appoint counsel at the defendant’s request in any
first collateral proceeding. See Ariz. R. Crim. P. 32.5(a)(1).
14 DICKINSON V. SHINN
679 F.3d 1150, 1157 (9th Cir. 2012) (“[C]learly we cannot
hold counsel ineffective for failing to raise a claim that is
meritless.”). “Accordingly, [post-conviction] counsel would
not be ineffective for failure to raise an ineffective assistance
of counsel claim with respect to trial counsel who was not
constitutionally ineffective.” Sexton, 679 F.3d at 1157.
Similarly, to satisfy Martinez’s “prejudice” prong, a
petitioner must “demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which
is to say that the prisoner must demonstrate that the claim
has some merit.” Martinez, 566 U.S. at 14. 3
In sum, “to establish cause and prejudice in order to
excuse the procedural default of his ineffective assistance of
trial counsel claim,” a petitioner must demonstrate:
“(1) post-conviction counsel performed deficiently;
(2) ‘there was a reasonable probability that, absent the
deficient performance, the result of the post-conviction
proceedings would have been different’; and (3) the
‘underlying ineffective-assistance-of-trial-counsel claim is a
substantial one.’” Ramirez v. Ryan, 937 F.3d 1230, 1242
(9th Cir. 2019) (internal citations omitted), cert. granted sub
nom. Shinn v. Ramirez, No. 20-1009, 2021 WL 1951793(U.S. May 17, 2021). Thus, whether Dickinson’s procedural
default is excused depends on the merits of his underlying
IATC claim, and specifically, on whether Dickinson can
show that he was prejudiced within the meaning of
3
Notably, the Martinez “cause” and “prejudice” analyses overlap
with each other because the determination whether there is a “reasonable
probability that the result of the post-conviction proceedings would have
been different” had post-conviction counsel raised an issue is
“necessarily connected to the strength of the argument that trial counsel’s
assistance was ineffective.” Clabourne v. Ryan, 745 F.3d 362, 377 (9th
Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d
798, 818 (9th Cir. 2015) (en banc).
DICKINSON V. SHINN 15
Strickland by his trial counsel’s failure to object to the
erroneous jury instruction.
IV
Dickinson asserts two different theories in an effort to
establish prejudice and excuse the procedural default of his
claims—that he was deprived of a more favorable standard
of review on appeal and that he was prejudiced at trial. We
reject both arguments and affirm the district court on the
ground that Dickinson has not presented a substantial IATC
claim.
A
Dickinson argues that his trial counsel’s failure to object
prejudiced him because it deprived him of a more favorable
standard of review on direct appeal. While we affirm the
district court’s holding that Dickinson failed to show
prejudice on this theory, we do so on a different basis than
the one the district court articulated.
1
The district court did not decide whether, as a general
matter, “an inquiry into trial counsel’s effectiveness under
Strickland includes an evaluation of whether the appeal
would have been different, but for trial counsel’s missteps.”
Instead, it held that Dickinson could not have shown
prejudice to his direct appeal in his state collateral
proceedings because Arizona courts have rejected that
approach. See State v. Speers, 361 P.3d 952, 960 (Ariz. Ct.
App. 2015) (rejecting an IATC petitioner’s argument that
“framed the issue . . . in the context of counsel’s failure to
preserve [his] claims for appeal,” reasoning that “[h]e is
challenging his attorney’s conduct at his trial, and must show
16 DICKINSON V. SHINN
that [the attorney’s] alleged unprofessional errors and
omissions were sufficiently prejudicial that they
‘undermine[d] confidence in the outcome’ of that
proceeding.” (last alteration in original) (quoting Strickland,
466 U.S. at 694)).
Dickinson argues that this court “does not defer to
Arizona law generally as to the interpretation of [federal]
constitutional questions,” and that Arizona courts’ approach
to analyzing Strickland prejudice is irrelevant to a federal
habeas court’s evaluation of an IATC claim. Although this
is true, in analyzing whether Dickinson’s procedural default
is excused based on his state post-conviction counsel’s
failure to raise a ground for relief, it is nevertheless relevant
to consider whether prevailing case law disfavored that
ground. See, e.g., Jones v. Barnes, 463 U.S. 745, 751–52
(1983) (“Experienced advocates since time beyond memory
have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if
possible, or at most a few key issues.”); cf. Smith v. Robbins,
528 U.S. 259, 288 (2000) (explaining that while it is
“possible to bring a Strickland claim based on counsel’s
failure to raise a particular claim, . . . it is difficult to
demonstrate that counsel was incompetent” for failing to
raise the claim).
Further complicating the matter, Speers was decided by
Division Two of the Arizona Court of Appeals, while
Dickinson’s post-conviction proceedings took place in
Division One. Thus, while Speers would have been
persuasive “absent a decision by the Arizona Supreme Court
compelling a contrary result,” it would not have completely
foreclosed Dickinson from obtaining state post-conviction
relief with his prejudice-on-appeal theory. Scappaticci v.
Sw. Sav. & Loan Ass’n, 662 P.2d 131, 136 (Ariz. 1983).
DICKINSON V. SHINN 17
Rather than resolve these issues, we affirm the district
court on the more general ground that as a matter of federal
law, Dickinson cannot satisfy Strickland’s prejudice
requirement for his IATC claim merely by showing that trial
counsel’s failure to object to a jury instruction deprived him
of a more favorable standard of review on direct appeal.
2
Dickinson argues that under the Strickland prejudice
analysis, we must consider not only whether his trial
counsel’s error undermines confidence in the jury’s verdict,
but also whether it “undermines confidence in the outcome
of the direct appeal.” To the extent these two inquiries might
yield different answers (that is, that there is a reasonable
probability that a petitioner may have prevailed on appeal
but for counsel’s error, but there is no reasonable probability
that the jury’s verdict would have been different), this
approach would be contrary not only to the Supreme Court’s
prejudice analysis in Strickland, but also a steady line of
subsequent cases holding that the IATC prejudice analysis
focuses on the effect of an alleged error on the verdict—that
is, on outcome of the trial. See, e.g., Lockhart v. Fretwell,
506 U.S. 364, 372 (1993) (noting that Strickland’s prejudice
inquiry “focuses on the question whether counsel’s deficient
performance renders the result of the trial unreliable or the
proceeding fundamentally unfair”); Walker v. Martel,
709 F.3d 925, 941 (9th Cir. 2013) (“Strickland requires an
actual finding that it is reasonably probable that, but for the
unprofessional errors, the outcome at trial would have been
different.” (emphasis added)). 4
4
Thus, the Supreme Court has repeatedly cautioned that “the rules
governing ineffective-assistance claims ‘must be applied with
18 DICKINSON V. SHINN
If we accepted Dickinson’s theory of prejudice based on
the loss of a more favorable standard of appellate review, we
would be allowing an end run around Strickland’s stringent
requirement of demonstrating that “but for counsel’s
unprofessional errors, the result of the proceeding”—not
merely the defendant’s burden during a subsequent
proceeding—“would have been different.” Strickland,
466 U.S. at 694 (emphasis added). We decline to adopt a
theory that would expand prejudice beyond the Court’s
analysis in Strickland.
Dickinson cites Roe v. Flores-Ortega, 528 U.S. 470(2000), to argue that “Strickland applies to ‘counsel’s
performance during the course of a legal proceeding, either
at trial or on appeal.’” In Flores-Ortega, after a defendant
pleaded guilty to second-degree murder and was sentenced,
his court-appointed trial counsel failed to file a timely notice
of appeal. Id. at 473–74. The defendant subsequently
sought federal habeas relief, alleging ineffective assistance
of counsel based on his trial counsel’s failure to file a notice
of appeal. Id. at 474. The Supreme Court observed that
“counsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think
scrupulous care,’” Weaver v. Massachusetts, 137 S. Ct. 1899, 1912
(2017) (citation omitted), lest “‘[a]n ineffective-assistance claim . . .
function as a way to escape rules of waiver and forfeiture and raise issues
not presented at trial,’ thus undermining the finality of jury verdicts,” id.(first alteration in original) (quoting Harrington v. Richter, 562 U.S. 86,
105 (2011)). See also Premo v. Moore, 562 U.S. 115, 122 (2011) (“An
ineffective-assistance claim can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial . . . , and so
the Strickland standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry’ threaten the integrity of the very adversary
process the right to counsel is meant to serve.” (quoting Strickland,
466 U.S. at 689–90)).
DICKINSON V. SHINN 19
either (1) that a rational defendant would want to appeal . . . ,
or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.” Id. at 480.
The Court further held that “to show prejudice in these
circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have
timely appealed.” Id. at 484.
The Court explained that although Strickland’s prejudice
prong ordinarily requires a “defendant to demonstrate that
the errors ‘actually had an adverse effect on the defense,’”
id. at 482 (quoting Strickland, 466 U.S. at 693), this case was
“unusual in that counsel’s alleged deficient performance
arguably led not to a judicial proceeding of disputed
reliability, but rather to the forfeiture of a proceeding itself,”
id. at 483. Under these unique circumstances, the Court
reasoned, the “denial of the entire judicial proceeding itself,
which a defendant wanted at the time and to which he had a
right, . . . demands a presumption of prejudice. Put simply,
we cannot accord any presumption of reliability to judicial
proceedings that never took place.” Id. (internal quotation
marks and citation omitted).
Flores-Ortega does not support Dickinson’s argument
that the loss of a more favorable standard of appellate review
due to counsel’s failure to object to a jury instruction
satisfies Strickland’s prejudice prong. Counsel’s failure to
object to a jury instruction did not “deprive[]” Dickinson of
“an appeal altogether.” Id. Instead, ordinary trial errors like
this fall under the general rule that the Supreme Court
carefully reiterated and distinguished on the facts in Flores-
Ortega: “We normally apply a strong presumption of
reliability to judicial proceedings and require a defendant to
overcome that presumption by showing how specific errors
20 DICKINSON V. SHINN
of counsel undermined the reliability of the finding of guilt.”
Id. at 482 (alteration adopted) (internal quotation marks and
citations omitted). Indeed, Dickinson does not argue that the
failure to object to a jury instruction is an error of such
“magnitude” that it calls for “presum[ing] prejudice.” Id.
Instead, he cites Flores-Ortega to argue that a defendant can
show he was prejudiced by trial counsel’s deficient
performance based solely on the loss of a more favorable
standard of review in appellate proceedings. But nothing in
Flores-Ortega supports this argument. 5
However, the Eleventh Circuit’s reasoning in Davis v.
Secretary for the Department of Corrections, 341 F.3d 1310(11th Cir. 2003) is instructive on the issue of when the
outcome of an appeal is relevant to the prejudice inquiry for
an IATC claim. In Davis, defense counsel objected to the
state’s repeated peremptory strikes of black jurors during
voir dire, but then failed to renew his objection at the
conclusion of voir dire as required under Florida law to
preserve a Batson challenge for appeal. Id. at 1314–15. On
federal habeas review, the Eleventh Circuit held that trial
5
Dickinson also cites Garza v. Idaho, 139 S. Ct. 738 (2019), to
support his theory of prejudice on appeal, but that case is similarly
inapposite. In Garza, the Court merely extended Flores-Ortega’s
holding to situations when “the defendant has, in the course of pleading
guilty, signed . . . an appeal waiver.” Id. at 742 (quotation marks and
citation omitted). The Court held that “when an attorney’s deficient
performance costs a defendant an appeal that the defendant would have
otherwise pursued,” the “presumption of prejudice recognized in Flores-
Ortega applies regardless of whether the defendant has signed an appeal
waiver.” Id. The Court relied on the same reasoning as in Flores-
Ortega, explaining that when trial counsel’s error entirely deprives a
defendant of an appellate proceeding, Strickland prejudice does not
depend “on proof that the defendant’s appeal had merit.” Id. at 748. This
holding is unhelpful to Dickinson’s argument for the same reasons the
holding in Florez-Ortega is unhelpful.
DICKINSON V. SHINN 21
counsel had “performed deficiently in failing, as required by
[Florida law], to renew [defendant’s] Batson challenge
before accepting the jury.” Id. at 1314. The court went on
to consider whether, under Strickland, it should assess
prejudice based on the impact the error had on the trial or on
the appeal. Id. It concluded that the appropriate focus was
prejudice on appeal, likening counsel’s failure to renew the
objection to the attorney’s failure to file a notice of appeal in
Flores-Ortega:
As in Flores-Ortega, the attorney error
Davis identifies was, by its nature, unrelated
to the outcome of his trial. To now require
Davis to show an effect upon his trial is to
require the impossible. Under no readily
conceivable circumstance will a simple
failure to preserve a claim—as opposed to a
failure to raise that claim in the first
instance—have any bearing on a trial’s
outcome. Rather, as when defense counsel
defaults an appeal entirely by failing to file a
timely notice, the only possible impact is on
the appeal.
Accordingly, when a defendant raises the
unusual claim that trial counsel, while
efficacious in raising an issue, nonetheless
failed to preserve it for appeal, the
appropriate prejudice inquiry asks whether
there is a reasonable likelihood of a more
favorable outcome on appeal had the claim
been preserved.
Id. at 1315–16. The Eleventh Circuit’s distinction between
“a simple failure to preserve a claim” and “a failure to raise
22 DICKINSON V. SHINN
that claim in the first instance” aptly illustrates why Flores-
Ortega’s narrow holding does not apply to Dickinson’s
IATC claim. Id. Dickinson’s claim, based on his trial
counsel’s failure to object to a jury instruction, is not the sort
of “unusual claim that trial counsel, while efficacious in
raising an issue, nonetheless failed to preserve it for appeal.”
Id. at 1316. Unlike the circumstances in either Flores-
Ortega or Davis, it is entirely possible to analyze the
prejudice of an unobjected-to jury instruction upon the
outcome of the trial itself.
Dickinson also argues that the Second, Third, and Fifth
Circuits, along with this circuit in an unpublished
memorandum disposition, have held “that prejudice exists
where trial counsel’s failure to preserve an issue for appeal
prejudiced the outcome of the appeal.” But, as we explain
next, none of the decisions he cites support this proposition.
Dickinson first cites Parker v. Ercole, 666 F.3d 830 (2d
Cir. 2012) (per curiam), in which a § 2254 petitioner argued
that his trial counsel had ineffectively failed to preserve a
sufficiency-of-the-evidence objection for appeal after the
jury returned a guilty verdict. Id. at 832. Because the
objection would not have affected the trial itself, and the trial
court would have reviewed such an objection using the same
standards as the appellate court, the Second Circuit noted
without analysis that the prejudice prong depended on
whether, “but for his counsel’s failure to preserve his
sufficiency claim, there is a reasonable probability that the
claim would have been considered on appeal and, as a result,
his conviction would have been reversed.” Id. at 834. The
Second Circuit did not, however, suggest that the loss of a
more favorable standard of appellate review could satisfy
Strickland’s prejudice requirement.
DICKINSON V. SHINN 23
He also cites Rogers v. Quarterman, 555 F.3d 483 (5th
Cir. 2009), where the Fifth Circuit considered the argument
by a § 2254 petitioner, convicted while still a minor, that “he
was prejudiced by defense counsel’s mistake” in failing to
object to the admission of his confession on voluntariness
grounds. Id. at 495. Although Texas law did not favor such
a challenge, the petitioner nonetheless argued that counsel’s
failure to object (and thus preserve the issue for appeal)
prejudiced him “because his inability to appeal the
voluntariness of his confession made it impossible for an
appellate court to adopt a new rule requiring parental access
during juvenile interrogation,” which—if adopted—would
have rendered his confession inadmissible. Id.
In rejecting this argument, the Fifth Circuit did not
address whether a petitioner could show prejudice based on
the loss of more favorable appellate review. See id. It
simply held that the petitioner did not suffer the prejudice he
claimed, reasoning that “[t]his court has no reason to
speculate that a Texas appellate court would impose
additional per se requirements to further protect juveniles,”
and that absent such a rule, “there is no reasonable likelihood
that the Fourteenth Court of Appeals, the Texas Court of
Criminal Appeals, or the United States Supreme Court
would have found the confession to be involuntary or
inadmissible had that issue been properly before it.” Id. The
Fifth Circuit’s brief discussion of how an objection might
have been resolved had it not been waived—in the course of
concluding that counsel’s failure to object did not prejudice
the petitioner—does not support Dickinson’s argument that
the loss of a more favorable standard of review constitutes
Strickland prejudice.
Dickinson also cites Government of the Virgin Islands v.
Vanterpool, 767 F.3d 157 (3d Cir. 2014), but this decision
24 DICKINSON V. SHINN
does not address the possibility of trial counsel’s error
prejudicing a defendant on appeal. Instead, the Third Circuit
held that a § 2254 petitioner’s trial counsel prejudiced him
by failing to assert a First Amendment challenge to a
criminal statute because “had [his] attorney raised the issue
to the trial court, [the statute] would likely have been found
unconstitutional.” Id. at 168. The Third Circuit did not
discuss whether this constitutional challenge would have
succeeded at trial or on appeal; it simply concluded that “the
First Amendment challenge would have been viable had it
been raised during trial.” Id. at 160. Moreover, because the
First Amendment challenge would have invalidated the
statute of conviction, the prejudice analysis in Vanterpool
certainly does not support Dickinson’s argument that an
error may fall short of undermining confidence in the
outcome of the trial, but nevertheless satisfy Strickland’s
prejudice prong simply by depriving the defendant of a more
favorable appellate standard of review.
Finally, Dickinson argues that in Burdge v. Belleque,
290 F. App’x 73 (9th Cir. 2008), an unpublished
memorandum disposition, the Ninth Circuit granted “habeas
relief because trial counsel’s failure to preserve what would
have been a meritorious issue on appeal was prejudicial.” In
Burdge, a defendant’s trial counsel failed to object to the
application of a state sentencing provision that the Oregon
Court of Appeals subsequently ruled was inapplicable to
defendants who, like him, had no felony convictions at the
time they committed the relevant offense. Id. at 76.
On federal habeas review, a panel of this court held that
the Oregon Supreme Court had unreasonably applied
Strickland in denying the defendant’s IATC claim. Id. at 77.
The panel concluded that counsel’s failure to object to the
application of the sentencing provision clearly constituted
DICKINSON V. SHINN 25
deficient performance and that the petitioner was prejudiced
because, given the state of Oregon law on the sentencing
provision, “if counsel had objected to [its] applicability . . . ,
either the sentencing judge would have agreed with the
objection, or the issue would have been preserved for
appeal.” Id. at 79.
Burdge does not support Dickinson’s argument. 6 The
court in Burdge did not analyze whether the loss of a more
favorable standard of appellate review satisfies Strickland’s
prejudice prong for deficient performance by trial counsel.
Instead, it simply concluded that if trial counsel had objected
to the sentencing error, “either the sentencing judge would
have agreed with the objection, or the issue would have been
preserved for appeal.” Id. To be sure, in a certain sense, the
forfeiture of an issue for appeal is relevant to analyzing the
prejudice of trial counsel’s failure to object because we
assume that if trial counsel had objected and the trial court
erroneously overruled the objection, the error would have
been corrected on appeal. But that is simply to say that when
assessing whether a defendant was prejudiced by trial
counsel’s failure to object, we assume axiomatically that the
objection, if raised, would have been correctly ruled upon.
This is apparently what the Burdge panel meant when it
concluded that “either the sentencing judge would have
agreed with the objection, or the issue would have been
preserved for appeal.” Id. This also helps clarify why the
Second and Third Circuits discussed how an unraised
6
Moreover, as a memorandum disposition, Burdge is “at best,
persuasive authority.” Hines v. Youseff, 914 F.3d 1218, 1230 (9th Cir.
2019). And even assuming the panel in Burdge implicitly endorsed
Dickinson’s position, it did so in passing, without any analysis that could
persuasively support Dickinson’s argument.
26 DICKINSON V. SHINN
objection might have fared on appeal, even though a trial
court would have initially ruled on it. See Vanterpool,
767 F.3d at 168 (“[H]ad Vanterpool’s attorney raised the
issue to the trial court, Section 706 would likely have been
found unconstitutional. By virtue of his trial counsel’s
failure to preserve a viable First Amendment challenge,
Vanterpool has satisfied the second prong of the Strickland
test.” (emphasis added)); Parker, 666 F.3d at 834 (“Parker
must show that, but for his counsel’s failure to preserve his
sufficiency claim, there is a reasonable probability that the
claim would have been considered on appeal and, as a result,
his conviction would have been reversed.” (emphasis
added)). But these cases do not support the argument that
the loss of an appellate standard of review can itself
constitute prejudice under Strickland.
* * *
Given the clear weight of authority against Dickinson’s
argument, and considering that no court has adopted it, we
find his prejudice-on-appeal theory unpersuasive. We hold
that Dickinson cannot satisfy Strickland’s prejudice
requirement for an IATC claim for failure to object to a jury
instruction based on the consequent loss of a more favorable
standard of appellate review.
B
We next consider Dickinson’s argument that his IATC
claim is substantial because his trial counsel’s failure to
object to the erroneous instruction prejudiced him at trial.
Specifically, Dickinson asserts that “at least one juror could
have relied on the invalid portion of the instruction and
convicted him of attempted second-degree murder based on
a finding that his intent was only to injure, and not to kill”
the victim. We find this argument unpersuasive.
DICKINSON V. SHINN 27
As an initial matter, unlike Dickinson’s prejudice-on-
appeal theory that we rejected in the preceding section, and
which would have implicated Arizona state courts’ harmless
error standard, this theory of prejudice turns directly on
Strickland’s standard. See Musladin v. Lamarque, 555 F.3d
830, 834 (9th Cir. 2009). To establish prejudice under
Strickland, Dickinson must show “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. Although Dickinson correctly observes that
counsel’s error need not be “outcome-determinative” to
constitute ineffective assistance, id. at 697, “[t]he likelihood
of a different result must be substantial, not just
conceivable,” to satisfy Strickland’s prejudice prong,
Harrington, 562 U.S. at 112 (citation omitted). Thus, when
the Supreme Court declined to adopt a more stringent
“outcome-determinative test” for prejudice in Strickland, it
explained that the difference between this standard and the
“substantial likelihood” test is so small that it “should alter
the merit of an ineffectiveness claim only in the rarest case.”
Strickland, 466 U.S. at 697. 7
When Dickinson challenged the erroneous jury
instruction on direct appeal, the Arizona Court of Appeals
held that he failed to “affirmatively prove prejudice” by
“show[ing] that a reasonable, properly instructed jury could
have reached a different result,” as Arizona law required for
him to prevail on a forfeited jury instruction challenge.
Dickinson, 314 P.3d at 1286 (internal quotation marks and
7
Dickinson argues that the district court erred by requiring him to
show “that the outcome of his trial would have been different with a
properly instructed jury,” “not that it could have been different.” As we
explain below, the district court applied the proper test for Strickland
prejudice.
28 DICKINSON V. SHINN
citations omitted). The Arizona Court of Appeals found that
at trial, “[t]he State’s theory was that Dickinson intended to
kill the victim, not that he intended to cause physical injury
or knew that his conduct would cause serious physical
injury.” Id. It also found that Dickinson never asserted a
lack-of-intent defense, but instead solely asserted mistaken
identity. Id. Finally, it found that the jury heard significant
evidence that Dickinson intended to kill the victim, and no
firsthand evidence that Dickinson intended only to cause
serious injury. Id. at 1286–87. The court found nothing to
“suggest[] that Dickinson intended to cause serious injury to
the victim (as opposed to kill him), which is the fundamental
error in the jury instructions.” Id. at 1288.
We must accept the Arizona Court of Appeals’ factual
findings about Dickinson’s trial unless rebutted by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1);
Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir.
2012). 8 The record amply supports the Arizona Court of
Appeals’ characterization of the trial, and considering these
facts, Dickinson cannot demonstrate a reasonable
probability that the trial would have had a different outcome
without the erroneous jury instruction. The jury heard
overwhelming evidence that Dickinson intended to kill the
victim, it heard only a few passing comments that it could
8
The Arizona Court of Appeals’ legal conclusion regarding
prejudice was based on state law’s “fundamental error” standard, not
Strickland’s standard for prejudice. No state court ruled on the merits of
Dickinson’s IATC claim, and thus we do not apply AEDPA deference to
any legal conclusion of the state courts regarding prejudice.
Nevertheless, we owe deference to the state court’s factual findings. See
Kirkpatrick v. Chappell, 950 F.3d 1118, 1131 (9th Cir. 2020), cert.
denied, 141 S. Ct. 561 (2020) (“Unlike § 2254(d), § 2254(e)(1)’s
application is not limited to claims adjudicated on the merits. Rather, it
appears to apply to all factual determinations made by state courts.”).
DICKINSON V. SHINN 29
have conceivably construed as evidence that Dickinson did
not intend to kill the victim, and neither the State nor defense
counsel ever suggested that Dickinson intended only to
cause serious physical injury.
First, overwhelming evidence supported the conclusion
that Dickinson intended to kill the victim. Both the victim
and Altizer described at length how Dickinson had
brandished an ax and told the victim that he was “going to
kill [him]” minutes before the attack. Describing the attack,
the victim stated, “[T]he first time he clipped me . . . he had
that look in his face like, you know, he was going to kill me,
man, he was going to kill me . . . .” Todd testified that when
Dickinson “proceeded to run [the victim] down on his
bicycle,” the victim “was drug [sic] underneath the truck.”
The jury also heard testimony from multiple witnesses that
after the initial impact between the truck and the victim’s
bicycle, Dickinson backed up, revved his engine, and
accelerated toward the victim.
Second, only a handful of passing remarks by witnesses
at trial could have supported the theory that Dickinson had
any intent other than to kill. Altizer speculated that when
Dickinson said, “I’m going to run him over,” he meant it
“jokingly.” On the occasions when Dickinson pulled a knife
and an ax on the victim, he ultimately did not use those
weapons. And Altizer’s testimony that after the attack
Dickinson tossed him the keys and said “[t]hat he done it”
could suggest that Dickinson only intended to injure the
victim, assuming that Dickinson realized at the time that
what “he [had] done” was merely injure, not kill, the victim. 9
9
Dickinson also cites several statements from the trial judge outside
the presence of the jury to argue that “the trial judge doubted the strength
30 DICKINSON V. SHINN
Significantly, however, even if the defense could have
marshalled this scant evidence into an argument that
Dickinson lacked the intent to kill, it never did so. Defense
counsel never questioned a single witness about whether
Dickinson intended to kill the victim, nor did he present any
evidence that Dickinson intended to do something other than
kill him, such as maim, injure, or scare him. In the same
vein, defense counsel’s opening and closing arguments
never even hinted at the possibility that Dickinson intended
only to seriously injure the victim. Instead, they focused
almost exclusively on whether the Dickinson was in fact the
driver and whether Dickinson’s alibi was valid. As defense
counsel characterized his closing argument to the jury:
[I]f my closing had a title, I suppose it would
be the mysterious injury of [the victim].
While there’s no doubt that [the victim]
suffered some kind of injury of some type
that day, he went to the hospital, what is in
doubt and what the question is, the who, the
what, the when, the where, and the how and
the why; because it is those questions that
creates [sic] uncertainty, and it’s that
uncertainty that lends the mysteriousness to
the title of my closing.
of the evidence that Dickinson intended to either seriously injure or kill
[the victim].” For example, the trial judge stated during sentencing, “I
have seen cases in which I thought serious physical injures [sic] were a
whole lot worse than those that were suffered by [the victim], although I
would certainly not volunteer to get run over by a vehicle in the manner
that he did.” But these statements are irrelevant to the question before
us: whether 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.
DICKINSON V. SHINN 31
In contrast, the State focused almost exclusively on the
theory that Dickinson intended to kill the victim. The State’s
first words to the jury during its opening statement were,
“Good afternoon. The evidence in this case will show you
that the defendant, Zane Dickinson, tried to kill [the
victim].” It emphasized this theme throughout the trial. The
only statement during opening or closing arguments that
might have led the jury to consider whether Dickinson
intended to cause serious physical injury was an offhand
remark by the State, near the beginning of its closing
argument, that Dickinson “knew that his conduct would
result in death or serious physical injury.” 10 Apart from this
paraphrase of the erroneous jury instruction, the State
exclusively argued that the evidence showed Dickinson
intended to kill the victim. It repeatedly emphasized that
because an automobile can be a deadly weapon, running
somebody over suggests an intent to kill:
• “This could have been much worse; [the
victim’s] injuries could have been much
worse. You get spit through underneath a
truck, could have been much worse. But he
was trying to kill him.”
• “[Y]ou guys, your common experience and
life experience, you know, that people get
killed when they get ran [sic] over. Backing
10
The State also made a single brief reference in its opening
statement to a recorded jail call in which Dickinson’s mother apparently
stated that a friend heard Dickinson “was just trying to scare [the
victim].” However, the record does not include a transcript of this call,
and Dickinson makes no reference to it in his briefing.
32 DICKINSON V. SHINN
out, someone gets backed over, people get
killed at low speeds.”
• “The context is clear. The defendant was
there. He ran the victim over. And he should
have stopped. But again, he was trying to kill
him, so why would he stop?”
• “[W]hen you’re trying to kill somebody and
run them over, I mean it’s—what do you
expect?”
The State also repeatedly emphasized Dickinson’s
threats to kill the victim:
• “Now, what the evidence will show you is
that [Dickinson] was trying to kill [the
victim]. Told him he was going to kill him
up here, with the ax; then he went looking for
him in his truck, and he didn’t just try once,
took him to the second time before he finally
got him.”
• “[I]n that dispute, the defendant grabbed an
ax out of the truck and told the victim that he
was going to fucking kill him.”
• “Remember he said he was going to fucking
kill him . . . .”
Dickinson attempts to discount these statements by
asserting that “arguments of counsel cannot substitute for
instructions by the court,” Taylor v. Kentucky, 436 U.S. 478,
488–89 (1978). To be sure, attorneys’ remarks during
opening and closing argument do not absolve a trial court of
its duty to properly instruct the jury. Thus, in Taylor, a direct
DICKINSON V. SHINN 33
proceeding in which the defendant argued that his trial was
fundamentally unfair because the court refused to instruct
the jury on the presumption of innocence, the Supreme Court
rejected the state’s argument that “no additional instructions
were required, because defense counsel argued the
presumption of innocence in both his opening and closing
statements.” Id. at 488.
But Taylor addressed only whether “the trial court’s
refusal to give petitioner’s requested instruction on the
presumption of innocence resulted in a violation of his right
to a fair trial as guaranteed by the Due Process Clause of the
Fourteenth Amendment,” id. at 490, not whether there is a
reasonable probability that the jury would have returned a
different verdict but for counsel’s failure to object to an
instruction on the definition of a crime, see Strickland,
466 U.S. at 694. We routinely consider the trial record in its
entirety to determine whether an attorney’s deficient
performance prejudiced a defendant, and Dickinson cites no
authority holding that it is improper to do so. See, e.g.,
Hardy v. Chappell, 849 F.3d 803, 821 (9th Cir. 2016)
(holding that “[u]nder no reasonable reading of the record
could it be concluded the jury actually found [petitioner]
guilty under an aid-or-abet theory” despite the inclusion of
an aid-and-abet instruction, in part because “[w]hen the
prosecutor addressed the aid-and-abet theory in his closing
argument, he described only [other defendants’]
involvement—not [petitioner’s]”); Zapata v. Vasquez,
788 F.3d 1106, 1117 (9th Cir. 2015) (“Here, the totality of
the circumstances shows the California Court of Appeal’s
prejudice determination was unreasonable.”).
In sum, the jury heard overwhelming evidence that
Dickinson intended to kill the victim, the State argued
exclusively (with the exception of reciting the erroneous jury
34 DICKINSON V. SHINN
instruction once at the beginning of its closing argument)
that Dickinson intended to kill the victim, and Dickinson’s
attorney gave the jury no reason to consider the possibility
that he intended only to cause serious physical injury. 11 This
does not merely show, as Dickinson argues, that the jury
“could have convicted [him] based on the valid theory” of
intent to kill, Riley v. McDaniel, 786 F.3d 719, 726 (9th Cir.
2015). Rather, it shows that “we can be reasonably certain
. . . that the jury did convict [him] based on” that theory. Id.(alterations in original). If a juror had voted to convict based
on the invalid “serious physical injury” theory, he would
have had to entirely disregard Dickinson’s actual defense,
disbelieve the State’s strong argument that Dickinson
intended to kill, and form his own idiosyncratic theory of the
case, never actually discussed at trial, by picking a handful
of stray remarks out of two days of witness testimony. While
perhaps conceivable, this scenario is not reasonably
probable. See Strickland, 466 U.S. at 694.
Dickinson relies on a single Fifth Circuit decision, Gray
v. Lynn, 6 F.3d 265 (5th Cir. 1993), to argue that
notwithstanding the trial record, he was prejudiced by
counsel’s failure to object to the erroneous jury instruction.
We are not persuaded that we should apply Gray to conclude
that Dickinson was prejudiced at trial.
In Gray, a jury found the defendant guilty of first-degree
murder after hearing evidence that he had appeared at a
couple’s door holding a gun, told the man who answered the
door that he was going to “blow [his] brains out,” and hit him
11
In addition, the trial judge gave the jurors the opportunity to
submit questions to the witnesses during trial, and nothing in the record
suggests that any of the jurors submitted a question to probe whether
Dickinson intended to kill or merely to inflict serious physical injury.
DICKINSON V. SHINN 35
on the side of the head with the gun. Id. at 267. He then
entered their bedroom, struck the woman and the man with
his gun, and got into a struggle with the man during which
he fired three shots at the man at close range, all of which
missed. Id. The jury was erroneously instructed that “[a]n
essential element of the offense of attempted first degree
murder is specific criminal intent to kill or inflict great
bodily harm.” Id. at 269 (alteration in original). Gray’s
counsel failed to object to this instruction, id., and on federal
habeas review, the Fifth Circuit concluded that counsel’s
failure constituted ineffective assistance, id. at 271–72.
Assessing Strickland’s prejudice prong, the Fifth Circuit
framed its inquiry as “whether there is a reasonable
probability that the jury would have had a reasonable doubt
respecting Gray’s guilt if the phrase ‘or inflict great bodily
harm’ had not been included in the charge.” Id. at 269–70.
The court concluded that there was prejudice, noting that
after threatening to “blow” the victim’s “brains out,” Gray
proceeded to strike him on the head with the gun “instead of
immediately firing the gun in order to carry out that threat.”
Id. at 270. The court reasoned:
The jury plausibly could have interpreted this
evidence in at least two ways: (1) Gray
intended to kill James by shooting him with
the gun, but did not succeed; or (2) Gray
intended to inflict great bodily harm on
James by striking him and shooting him with
the gun. Considering the circumstances,
including the fact that Gray did not take
advantage of several golden opportunities to
kill James if he had intended to do so, we
think there is at least a reasonable probability
that the jury could have had a reasonable
36 DICKINSON V. SHINN
doubt about Gray’s intent to kill, and that it
convicted him instead on the basis of the
erroneous instruction, because it found that
he had the intent to inflict great bodily harm.
Id.As an initial matter, contrary to Dickinson’s assertion,
Gray is not “squarely on point.” In Gray, although the
defendant knew both the victims and had previously lived
with one of them, id. at 267 & nn. 3, 4, there is no indication
that the defendant had previously threatened to kill either of
the victims or pulled a deadly weapon on them, as Dickinson
did. Furthermore, the male victim in Gray testified that “he
believed that, at that close range, Gray was capable of
carrying out the threat” to “blow [his] brains out,” even
though he did not carry it out. Id. at 267. There was no
comparable testimony at Dickinson’s trial that could have
led the jury to infer that Dickinson was fully capable of
carrying out his threat to kill, but instead chose to maneuver
his truck just so as to maim the victim.
Dickinson argues that, like the defendant in Gray, he
“did not take advantage of several golden opportunities to
kill” the victim—apparently referring to the instances when
he pulled a knife and an ax on the victim—and therefore, the
jury could have reasonably doubted his intent to kill. See id.
at 270. He also observes that because he “only hit the back
of [the victim’s] bike initially,” and did not hit the victim a
second time until the victim tried to turn off the road, the jury
could have found that he did not intend to kill the victim with
his truck. While this is perhaps “conceivable,” the
possibility that an attempted murder could have been carried
out more efficiently and brutally does not cast serious doubt
on the attacker’s intent. See Hardy, 849 F.3d at 819 (“A
DICKINSON V. SHINN 37
reasonable probability . . . must be substantial, not just
conceivable.”).
Indeed, the facts here are more closely analogous to a
subsequent Fifth Circuit case, Harris v. Warden, Louisiana
State Penitentiary, 152 F.3d 430 (5th Cir. 1998), in which
the defendant repeatedly stabbed a victim, ordered her into
the trunk of his car, and threatened to “finish [her] off,” id.
at 432. She was eventually rescued and “transported to the
hospital with several life-threatening wounds,” but she
survived after receiving intensive medical care. Id. at 433.
A jury convicted the defendant of attempted second-degree
murder after receiving an instruction similarly erroneous to
the one in Gray, and the defendant sought federal habeas
relief based on his attorney’s failure to object to the
instruction. Id. at 433–34.
The Fifth Circuit distinguished Gray and held that the
erroneous instruction did not prejudice the defendant,
reasoning that while the defendant in Gray “failed to take
advantage of . . . ‘golden opportunities’” to kill the victim
“and did not pursue the victim when he ran off,” this
defendant did take advantage of the opportunity to kill the
victim and simply failed: he “inflicted life-threatening stab
wounds . . . and basically left her for dead in the trunk of his
car. Not only is [his] leaving [the victim] for dead probative
of an intent to kill, but [his] deliberate use of a deadly
weapon in a manner likely to cause death further supports
the inference that he intended to kill [her].” Id. at 439.
While Dickinson did not injure his victim as severely as the
defendant in Harris injured his victim, his case is more akin
to Harris than it is to Gray because Dickinson acted on his
threat—albeit unsuccessfully—by “deliberate[ly] us[ing]
. . . a deadly weapon in a manner likely to cause death” and
then leaving his injured victim. Id.38 DICKINSON V. SHINN
More fundamentally, however, we find Gray
unpersuasive because it appears to have applied the wrong
rule in its Strickland prejudice analysis. Although the Fifth
Circuit initially described its prejudice inquiry as turning on
“whether there is a reasonable probability that the jury would
have had a reasonable doubt respecting Gray’s guilt if the
phrase ‘or inflict great bodily harm’ had not been included
in the charge,” Gray, 6 F.3d at 269–70, it transitioned from
this correct formulation of the Strickland standard to a
different and lower standard, unsupported by Strickland:
whether the jury “plausibly could have interpreted” the
evidence to support Gray’s innocence absent the erroneous
instruction, id. at 270; see also id. at 271 (“Under the court’s
instructions, the jury could have convicted Gray for
attempted first degree murder on the basis of a finding that
he had the intent to inflict great bodily harm, even if it had a
reasonable doubt that he had the specific intent to kill
James.” (emphasis added)).
This circuit and others have explicitly rejected this
approach of finding prejudice simply because a jury
conceivably could have convicted based on an improper
instruction. See, e.g., Hardy, 849 F.3d at 819 (“A reasonable
probability . . . must be substantial, not just conceivable.”
(quoting Strickland, 466 U.S. at 693–94)); Benge v. Johnson,
474 F.3d 236, 249 (6th Cir. 2007) (“What Benge could have
done, however, is irrelevant at this stage in the proceedings.
We must be able to say that a reasonable probability exists
that a properly instructed jury would have concluded that
Benge had shown [an affirmative defense] by the
preponderance of the evidence.”). 12
12
Dickinson observes that this circuit cited Gray’s prejudice
analysis favorably in United States v. Span, 75 F.3d 1383 (9th Cir. 1996),
DICKINSON V. SHINN 39
The record leaves no room for “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. Therefore, we hold that Dickinson has failed to
demonstrate a substantial IATC claim, and accordingly, his
procedural default of that claim is not excused under
Martinez.
V
We AFFIRM the district court’s denial of Dickinson’s
petition for a writ of habeas corpus.
but it did so only in passing for the proposition that prejudice can occur
“even though both the prosecutor and defense counsel argued the correct
law to the jury,” id. at 1390. In Span, the trial court failed to give an
excessive force instruction and instead gave another instruction
specifically precluding an excessive force defense in a trial for assaulting
federal officers. Based on the trial testimony of two witnesses, we
concluded it was “highly likely that a properly instructed jury would
have found that the Spans were not the first aggressors, but only
defending themselves against an excessive and outrageous use of force
by the marshals.” Id.