Lonnie Shoulders v. James Walker , 450 F. App'x 645 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONNIE JAMES SHOULDERS, No. 10-16814
Petitioner - Appellant, D.C. No. 2:07-cv-01763-MCE-
CHS
v.
JAMES WALKER, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted August 31, 2011
San Francisco, California
Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.**
Petitioner-Appellant Lonnie Shoulders appeals the district court’s denial of
his habeas petition under 28 U.S.C. § 2254. In 2004, Shoulders was convicted in
the Superior Court of Shasta County, California of a petty theft offense, enhanced
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
by a prior theft conviction. Shoulders argues that his trial counsel rendered
ineffective assistance by agreeing to stipulate to the prior conviction before the
jury. The California appellate court held that counsel’s performance was indeed
ineffective, but that Shoulders was not prejudiced by counsel’s ineffectiveness.
This court reviews de novo a district court’s denial of a state prisoner’s
petition for a writ of habeas corpus. Murdoch v. Castro, 609 F.3d 983, 989 (9th
Cir. 2010) (en banc). The district court’s findings of fact are reviewed for clear
error, legal conclusions are reviewed de novo, and the court may affirm on any
ground supported by the record. Kemp v. Ryan, 638 F.3d 1245, 1254 (9th Cir.
2011).
Because Shoulders presents a claim of ineffective assistance of counsel, “the
relevant clearly established law derives from” Strickland v. Washington, 466 U.S.
668 (1984). Premo v. Moore, 131 S. Ct. 733, 737–38 (2011). Strickland requires
proof of both deficient performance by counsel and prejudice to the petitioner. Id.
at 739. Both the state appellate court and the district court concluded that the first
prong of the Strickland test, deficient performance by counsel, was satisfied, and
respondent does not contest this finding in his brief; therefore, the only issue
before this court is the prejudice prong. See Martinez-Serrano v. I.N.S., 94 F.3d
21256, 1259 (9th Cir. 1996) (issues not addressed in argument portion of brief are
deemed waived).
To establish prejudice, Shoulders “must show that 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. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the outcome
or whether it is possible a reasonable doubt might have been established if counsel
acted differently.” Harrington v. Richter, 131 S. Ct. 770, 791 (2011). “The
likelihood of a different result must be substantial, not just conceivable.” Id.The California appellate court concluded that there was no reasonable
probability that, but for counsel’s ineffectiveness in agreeing to stipulate to the
prior conviction before the jury, the result of the proceeding would have been
different. Shoulders was arrested after he purchased two compact discs at a
department store. According to the California Court of Appeal, it was uncontested
that, in addition to the two he had purchased, Shoulders had hidden a third CD in
his pants and, after paying for the other two, transferred the third into his shopping
bag and left the store. The trial court held that, given this strong evidence against
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Shoulders, informing the jury of Shoulders’ previous theft conviction, while error,
was not prejudicial.
Shoulders maintains that the state appellate court made the prejudice
determination improperly, as it relied on the trial testimony of store personnel and
the arresting police officer, but did not view the store surveillance tape – shown to
the jury at trial – of Shoulders’ activities in the store. Because the store employee
witnesses had not watched Shoulders’ activities directly, but rather via surveillance
camera, the surveillance tape, Shoulders points out, was the only source of
information they had of the period before they approached him outside the store.
Moreover, the surveillance video is ambiguous. It is difficult to discern from the
recording whether or when Shoulders put the CD in his pants and later transferred
it to his shopping bag.
Shoulders contends that the Constitution requires a habeas court determining
whether the ineffective assistance of counsel prejudiced a defendant to consider the
entire trial court record. See Strickland v. Washington, 466 U.S. 668, 695 (1984)
(“[A] court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.”). Shoulders argues that the California Court of
Appeal did not do so. Because that court did not view the surveillance tape,
according to Shoulders, we should not defer to the factual determinations
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underlying its prejudice decision as we otherwise would under AEDPA, 28 U.S.C.
§ 2254(d).
Regardless of whether we apply the deferential AEDPA standard of review,
or assume that Shoulders is correct and review the issue of prejudice de novo,
viewing all the evidence presented at trial, including the surveillance tape, our
conclusion is the same: the ineffective assistance of Shoulders’ counsel did not
prejudice his trial. Shoulders admitted in a police interrogation that he put the CD
in his pants but stated that he intended to pay for it. The surveillance tape shows
unequivocally that Shoulders paid for only two CDs and that only two were put in
his shopping bag. Yet, it is uncontested that when he was stopped after walking
out of the store, there were three CDs in his bag. Therefore, however he managed
to do so, the fact is that rather than taking steps to pay for the third CD, Shoulders
instead transferred it into his shopping bag without purchasing it.
Considering the strong evidence against Shoulders, there was no reasonable
probability that, but for the fact that the jury was informed about Shoulders’ prior
theft conviction, the proceeding would have been different. The habeas petition
was therefore properly denied.
AFFIRMED.
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