Jimmy Richardson v. William Knipp , 649 F. App'x 438 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY RICHARDSON, No. 14-15984
Petitioner - Appellant, D.C. No. 2:11-cv-02996-GEB-
CKD
v.
WILLIAM KNIPP, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted April 12, 2016
San Francisco, California
Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.
Richardson appeals from the judgment of the district court denying his
petition for a writ of habeas corpus. We affirm.
Richardson advances two issues. The first is whether his appellate counsel
was ineffective for failing to “request that the California Court of Appeal recall its
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
remittitur” because of a change in the law. The second is whether his appellate
counsel was ineffective for “failing to challenge the admissibility of Mr.
Richardson’s probation report to prove a prior strike allegation.”
The California Court of Appeal ruled that there were no grounds under
California law under which Richardson’s counsel could have successfully moved
to recall the remittitur. To quote the court’s opinion, “Counsel had no ground to
seek the relief, and no prejudice flowed from counsel’s decision. Had counsel
sought recall, we would have denied the request.” In re Richardson, 126 Cal. Rptr.
3d 720, 735 (Cal. Ct. App. 2011). The California Supreme Court left this ruling
intact. The issue is entirely one of state law and therefore not cognizable pursuant
to federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The Court of Appeal determined that Richardson’s appellate counsel’s
performance was not constitutionally deficient for failing to challenge the use of a
probation report to prove a prior strike. This decision was neither contrary to, nor
involved an unreasonable application of clearly established law as determined by
the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). The decision was
not objectively unreasonable, it was not beyond fairminded disagreement, and it
did not amount to an extreme malfunction of justice. See Woods v. Etherton, 136
S. Ct. 1149, 1152-53 (2016). As the Court of Appeal correctly observed,
-2-
“Appellate counsel could not have reasonably known then that the [state] Supreme
Court was about to change the law in its [People v.] Trujillo [146 P.3d 1259 (Cal.
2006)] decision. Counsel thus was not expected to argue against the prevailing
law.” In re Richardson, 126 Cal. Rptr. 3d at 730.1
AFFIRMED.
1
We remind the Attorney General of California that Federal Rule of
Appellate Procedure 28(j) letters supported by decades-old precedent are not to be
used to inject an issue into a case that was not argued in the briefs, which is what
occurred here. Because counsel’s explanation for such a misstep was that it came
from an office pre-argument meeting, we deem this reminder necessary.
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