Jerry Shue, Jr. v. D. Sisto , 444 F. App'x 172 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY WAYNE SHUE, JR., No. 09-15734
Petitioner - Appellant, D.C. No. 1:05-cv-00504-AWI-
JMD
v.
D. K. SISTO, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted July 14, 2011
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and LYNN,** District
Judge.
Petitioner Jerry Wayne Shue, Jr., appeals from the district court’s denial of
habeas relief under 28 U.S.C. § 2241. We granted a certificate of appealability
with respect to two issues. First, Petitioner claims that the state violated its
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
obligations under Brady v. Maryland, 373 U.S. 83 (1963). Second, Petitioner
claims that his lawyer rendered constitutionally deficient assistance at trial. We
review de novo the district court’s decision. Kemp v. Ryan, 638 F.3d 1245, 1254
(9th Cir. 2011). Because the California Supreme Court summarily denied
Petitioner’s state habeas petition without stating its reasons for doing so, Petitioner
bears the burden of showing that "there was no reasonable basis for the state court
to deny relief." Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Because
Petitioner has failed to carry that burden, we affirm.
A. The Brady Claim
Petitioner first argues that the state violated Brady when it did not disclose a
witness’ prior conviction for felony welfare fraud. To establish that claim,
Petitioner must show, inter alia, "‘a reasonable probability that, had the [witness’
conviction] been disclosed to the defense, the result of the proceeding would have
been different.’" Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). "A reasonable probability of a
different result is . . . shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial." Id. at 434 (internal quotation
marks omitted). In the circumstances, we hold that the California Supreme Court
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reasonably could have concluded that suppression1 of the witness’ conviction did
not undermine confidence in the outcome of the trial.
At trial, Petitioner argued to the jury that he had committed voluntary
manslaughter, not murder, because he acted in the heat of passion while
intoxicated. The witness’ testimony somewhat supported Petitioner’s defense. She
confirmed that Petitioner had been drinking heavy liquor at the bar where she
worked since 2 p.m. on the afternoon of the murder. When she later arrived at the
bar to start her shift, she noticed that Petitioner’s eyes were dilated. She described
in detail the violent fight in which Petitioner and her husband, the victim, were
involved later that night. When Petitioner arrived at her home early the next
morning, the witness testified that Petitioner broke through her front door while
yelling profanities. That testimony did not necessarily contradict Petitioner’s
theory that he killed his victim while intoxicated and in the heat of passion. We
therefore hold that the California Supreme Court reasonably could have concluded
that, even if Petitioner had used the witness’ prior conviction to impeach her
1
The state argues that it did not suppress the conviction because Petitioner
could have discovered it on his own. We assume, without deciding, that the state’s
failure to advise Petitioner of the conviction constitutes "suppression" within the
meaning of the Brady rule. Even under that assumption, Petitioner’s Brady claim
fails because the California Supreme Court reasonably could have concluded that
he has not established prejudice.
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testimony, there is no reasonable probability that the trial would have turned out
differently.
B. The Ineffective Assistance of Counsel Claim
Petitioner similarly had to establish prejudice to succeed on his ineffective
assistance of counsel claim. Specifically, Petitioner had to show both that his
lawyer’s performance was objectively unreasonable in the circumstances and that
he was prejudiced by his lawyer’s deficient assistance. Fairbank v. Ayers, 632
F.3d 612, 617 (9th Cir. 2011). Because the witness’ testimony generally supported
Petitioner’s defense, we hold that the California Supreme Court reasonably could
have concluded that Petitioner was not prejudiced by his lawyer’s failure to
impeach the state’s witness with her prior conviction.
Petitioner also claims that his lawyer rendered deficient assistance by failing
to impeach the witness with several prior inconsistent statements. Although the
witness’ prior statements tended to support Petitioner’s manslaughter defense, we
cannot say that any reasonable jurist would be compelled to think that Petitioner
would have been convicted of manslaughter, and not murder, had those statements
been used to impeach the witness. Richter, 131 S. Ct. at 784. Our exacting
standard of review therefore requires that we affirm.
AFFIRMED.
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