Ismail Hassan v. Mike Obenland ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 9 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMAIL HASSAN, No. 18-36066
Petitioner-Appellant, D.C. No. 2:18-cv-00067-JCC
v.
MEMORANDUM*
MIKE OBENLAND,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted May 8, 2020**
Seattle, Washington
Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We examine the
Washington Supreme Court decision to determine whether it “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
determined by the Supreme Court of the United States,” or whether it “was based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). It was not.
The Supreme Court holding at issue was Strickland v. Washington, 466 US
668, 687–90, 694 (1984), under which Hassan’s habeas showing had to
demonstrate both deficient performance, subject to a “strong presumption” that
counsel’s performance might be considered sound trial strategy, and prejudice to
the defense with a reasonable probability of a different result had counsel
proceeded differently. That showing was not made.
The Washington Supreme Court’s holding was based on the proposition that
counsel may reasonably have calculated that a lesser included offense instruction
would undermine defendant’s misidentification strategy. That holding is
reasonable. Hassan’s claim that he was not the shooter might indeed have been
weakened by a claim that even if he was the shooter, his intentions were not as bad
as the charge required.
2
Hassan, in his artfully phrased declaration, does not claim that he would
have asked counsel to ask for a lesser included offense instruction had his lawyer
consulted him about it. His declaration says merely that he “would not have had
any problem” with it. He appears to be saying that he would not have objected to
counsel’s asking for the instruction, not that he would have told his lawyer to do
so.
Had Hassan obtained the instruction, it is hard to see how a jury could have
found a predicate in the evidence to convict him of the lesser but not the greater
offense. Either he was not the shooter, as he claimed, or he was, and had lied.
Hassan’s lawyer put on a strong defense, complete with an excellent expert
witness, to support Hassan’s claim that he was not the shooter and was
misidentified. The jury rejected it, evidently disbelieving Hassan. The
Washington Supreme Court made no prejudicially unreasonable determinations
which might entitle Hassan to relief under 28 U.S.C. § 2254.
AFFIRMED.
3