Sean O'Brien v. Leland McEwen ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 16 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN ALAN O’BRIEN, No. 20-16970
Petitioner-Appellant, D.C. No.
2:10-cv-02472-MCE-CKD
v.
LELAND MCEWEN, Warden, Calipatria MEMORANDUM*
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted February 7, 2023
San Francisco, California
Before: BYBEE and BUMATAY, Circuit Judges, and BENNETT,** District
Judge.
Sean O’Brien was convicted of first degree murder in California. He
commenced this federal habeas action in 2010 under the Antiterrorism and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
Effective Death Penalty Act of 1996 (AEDPA). The district court denied his
petition in 2014, ruling that California’s denial of O’Brien’s ineffective assistance
of counsel claims was reasonable and merited deference under AEDPA. In 2015,
we reversed the district court’s judgement in part, finding that the state court’s
application of Strickland was objectively unreasonable because O’Brien
established a colorable claim of relief and was never afforded a state or federal
evidentiary hearing on the claim. Accordingly, we remanded for an evidentiary
hearing with respect to several sub-claims of ineffective assistance of counsel. The
district court held an evidentiary hearing and again denied O’Brien’s petition.
O’Brien appeals, alleging that counsel was ineffective by failing to: (1)
introduce evidence from Robert Gilmore that co-participant William Wellman was
at the gun shop at 10:00 a.m.; (2) introduce Edward Winslow’s testimony that
O’Brien called the autoshop at 10:49 a.m.; (3) introduce Wellman’s statements of
O’Brien’s phone usage and driving route on the day of the murder; (4) impeach
Wellman on his changed time line; (5) introduce corroborating evidence that
O’Brien was home at 11:14 a.m.; and (6) introduce evidence of Mike Carrick’s
ATM withdrawals on the days preceding the murder.
We have jurisdiction under 28 U.S.C. § 1291 and § 2253, and we review the
district court’s denial of habeas relief de novo. Eslaminia v. White, 136 F.3d 1234,
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1236 (9th Cir. 1998). We review the district court’s findings of fact for clear
error. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
To show ineffective assistance of counsel, O’Brien must demonstrate that
counsel’s performance fell below an objective standard of reasonableness and that
he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687–92
(1984). Under the performance prong, we ask whether counsel’s decisions were
reasonable from his perspective at the time, starting from the “strong presumption
that counsel’s conduct falls within the wide range of reasonable conduct.” Id. at
689. O’Brien’s “highly demanding” task is to show that the only objective
explanation for his counsel’s performance is “gross incompetence.” Kimmelman v.
Morrison, 477 U.S. 365, 382 (1986). Under the prejudice prong, O’Brien must
demonstrate 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.
We affirm the district court’s ruling. O’Brien has failed to satisfy either
Strickland element.
Counsel’s performance was objectively reasonable. He adequately
investigated potential witnesses and formed an alibi defense with the information
that was available. For example, counsel’s decision to call Carl Christofferson
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instead of Gilmore was objectively reasonable because Christofferson worked at
the gun shop the day of the murder, and Gilmore’s testimony did not corroborate
O’Brien’s alibi defense. Counsel’s decision not to call Winslow as a witness was
also reasonable because he assessed that Winslow would not be a credible witness,
and Winslow could not pinpoint the time of O’Brien’s phone call. Counsel
followed through on his strategy to show Wellman was lying when he cross-
examined Wellman about his plea bargain and argued during closing that the plea
agreement gave Wellman a motive to lie.
Neither can O’Brien demonstrate prejudice. The evidence adduced at the
evidentiary hearing, had counsel introduced it at trial, would not have likely altered
the verdict. The evidence against O’Brien was significant. O’Brien borrowed and
later returned a shotgun with a missing shotgun shell that matched the type that
killed victim Kyle Smelser. Two co-participants identified O’Brien as the shooter.
O’Brien told his friend he had killed someone for a “wad of cash.”
For example, O’Brien was not prejudiced by his attorney’s failure to
introduce Carrick’s phone record or ask Carrick about the 11:14 a.m. phone call.
Carrick’s phone record merely indicated an incoming call from an unknown phone
number. O’Brien was not prejudiced by counsel’s failure to reject Carrick’s
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blanket assertion of his privilege against self-incrimination because Carrick could
assert his privilege in response to questions about the call.
Nor was O’Brien prejudiced by counsel’s omission of Wellman’s statements
in Detective Hoagland’s report, which related to O’Brien’s phone usage and
Wellman’s travel route. Both statements fit well within the prosecution’s case at
trial. Lastly, O’Brien was not prejudiced by counsel’s decision not to introduce
evidence that Carrick made two ATM withdrawals on the days preceding the
crime. How Carrick obtained money has little tendency to prove how O’Brien
obtained money. There is no likelihood such evidence would have changed the
outcome of trial.
O’Brien has thus failed to show that he received ineffective assistance of
counsel.
AFFIRMED.
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