John Luebbers v. Cdcr ( 2022 )

FILED
NOT FOR PUBLICATION
MAR 15 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HAROLD LUEBBERS, No. 19-17566
Petitioner-Appellant, D.C. No.
2:15-cv-02348-MCE-KJN
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
CORRECTIONS AND
REHABILITATION; JAMES
ROBERTSON, Warden, Solano State
Prison,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted March 9, 2022
San Francisco, California
Before: THOMAS, McKEOWN, and GOULD, Circuit Judges.
Petitioner John Harold Luebbers appeals the district court’s denial of his
habeas petition under 28 U.S.C. § 2254. We review the district court’s denial of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 2254 petition de novo. Carter v. Davis, 946 F.3d 489, 501 (9th Cir. 2019). The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies here.
We have jurisdiction under 28 U.S.C. § 2253(a). We affirm. Because the parties
are familiar with the factual and procedural history, we need not recount it here.
1. We decline to consider petitioner’s claim that the totality of trial
counsel’s conduct entirely failed to subject the prosecution’s case to meaningful
adversarial testing under United States v. Cronic, 466 U.S. 648 (1984), because the
issue was not presented to the district court and was raised for the first time on
appeal. Smith v. Richards, 569 F.3d 991, 995 (9th Cir. 2009).
2. The California Court of Appeal reasonably denied petitioner’s
ineffective assistance of counsel claim concerning trial counsel’s concession of
intent to kill and malice in his closing argument. The court reasonably concluded
that trial counsel’s decision to “admit[] what he had to admit” to buy credibility
with the jury was a tactical decision and therefore subject to a “strong
presumption” of “the exercise of professional judgment.” Yarborough v. Gentry,
540 U.S. 1, 8 (2003). The decision was a reasonable application of Strickland v.
Washington, 466 U.S. 668, 687 (1984). AEDPA deference therefore applies and
bars relief. 28 U.S.C. § 2254(d).
3. The California Superior Court reasonably denied petitioner’s
ineffective assistance of counsel claim as to counsel’s conduct at trial. The court
denied petitioner’s claim that his trial attorney was ineffective for not introducing
Detective Strasser’s report because it constituted inadmissible hearsay under state
law, a conclusion we are bound to follow. See Bradshaw v. Richey, 546 U.S. 74,
76 (2005) (“[A] state court’s interpretation of state law . . . binds a federal court
sitting in habeas corpus.”).
Similarly, the California Superior Court’s conclusion that the preliminary
report of psychiatrist Dr. Schaffer was inadmissible, is a state law question that is
not cognizable in a federal habeas petition. Id.To the extent petitioner now claims that his attorney was ineffective for
failing to call Dr. Schaffer as a witness, a fair reading of the preliminary report
indicates that it contained both helpful and damaging evidence as to
premeditation—the central issue at trial. “[S]trategic choices made [by counsel]
after thorough investigation . . . are virtually unchallengeable.” Strickland, 466
U.S. at 690. A choice not to present testimony that would open the door to the
introduction of damaging evidence is a strategic choice entitled to deference under
Strickland. Carter, 946 F.3d at 519.
We affirm the judgment of the district court.
AFFIRMED.