Willie Chadwick v. Rick Hill ( 2022 )

FILED
NOT FOR PUBLICATION
APR 11 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE ERVIN CHADWICK, No. 21-15567
Petitioner-Appellant, D.C. No.
2:20-cv-01264-WBS-GGH
v.
RICK HILL, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted February 17, 2022**
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,*** District Judge.
Willie Chadwick (Petitioner) appeals the district court order denying his
petition for a writ of habeas corpus. He contends that the district court erred when
*
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).
***
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
it concluded that the California Court of Appeal (state court) did not unreasonably
apply Strickland v. Washington, 466 U.S. 668 (1984). We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we AFFIRM.
We review de novo both the denial of a habeas petition and the rejection of a
claim of ineffective assistance of counsel. See Rhoades v. Henry, 598 F.3d 495,
500 (9th Cir. 2010).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
requires us to deny habeas relief unless the state court’s adjudication on the merits
of the habeas petition “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law.” Cheney v.
Washington, 614 F.3d 987, 993-94 (9th Cir. 2010) (citation omitted). When
reviewing a state court’s application of Strickland under the AEDPA, we “must
afford both the state court and the defense attorney the benefit of the doubt.”
Carter v. Davis, 946 F.3d 489, 503 (9th Cir. 2019) (citation and internal quotation
marks omitted). Our review, therefore, is “doubly differential.” Id. (citation
omitted).
To establish an ineffective assistance of counsel claim under Strickland, “a
convicted defendant must show (1) constitutionally deficient performance by
counsel (2) that prejudiced the defense.” Washington v. Shinn, 21 F.4th 1081,
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1092 (9th Cir. 2021) (citation omitted). Under AEDPA’s deferential standard of
review, the district court properly found that the state court’s application of
Strickland was not unreasonable.
1. Petitioner argues that trial counsel’s reliance on California Criminal Jury
Instruction 3477 to support his self-defense claim without his testimony constituted
ineffective assistance. However, the state trial court determined that there was
sufficient evidence presented–without Petitioner’s testimony–to give the
instruction. See Menendez v. Terhune, 422 F.3d 1012, 1029-30 (9th Cir. 2005)
(concluding that a state court’s determination under state law of the
appropriateness of an instruction “cannot form the basis for federal habeas relief”)
(citation omitted).
Petitioner also contends that trial counsel’s advice was not a reasonable
tactical decision because there was “no other evidence presented – or that was
obtainable – that supported [his] self-defense claim.” But, prior to advising
Petitioner against testifying, trial counsel conducted a practice direct and cross-
examination with Petitioner. Trial counsel concluded that Petitioner “might come
across to the jury as being angry at, rather than in fear of [the victim].” Trial
counsel was also concerned that if Petitioner testified, the jury would learn that
Petitioner had a prior “strike” conviction. See Cal. Penal Code § 667. After
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weighing these concerns, trial counsel advised Petitioner against testifying.
Because trial counsel conducted a thorough investigation before advising Petitioner
against testifying, her strategic choice is entitled to deference, see Cheney, 614
F.3d at 996, and is “virtually unchallengeable.” Demetrulias v. Davis, 14 F.4th
898, 913 (9th Cir. 2021) (citation omitted). The state court’s denial of Petitioner’s
habeas petition was not an unreasonable application of Strickland. See
Gulbrandson v. Ryan, 738 F.3d 976, 989 (9th Cir. 2013) (concluding that failure o
call the defendant as a witness “was reasonable under the circumstances”).
2. The state court’s conclusion that Petitioner failed to establish a
“reasonable probability” that his testimony would have changed the outcome of the
proceedings was also a reasonable application of Strickland.1 Id. at 990 (citation
omitted). Trial counsel had already concluded that Petitioner’s testimony may
have led the jury to perceive Petitioner as, “angry at, rather than in fear of [the
victim].” Moreover, evidence of Petitioner’s prior conviction would become
admissible if he testified. Because trial counsel’s advice was based on these “very
1
In support of this argument, Petitioner notes that trial counsel’s opening
statement presented a self-defense theory based on evidence that could only have
been introduced through Petitioner’s testimony. Trial counsel’s statement did not
prejudice Petitioner because trial counsel never promised the jury that Petitioner
would actually testify. See Saesee v. McDonald, 725 F.3d 1045, 1049–50 (9th Cir.
2013).
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good reason[s],” Petitioner could not establish prejudice. Dows v. Wood, 211 F.3d
480, 487 (9th Cir. 2000) (explaining that the petitioner could not establish
prejudice when his testimony would have led to the admission of prior convictions
for robbery and assault).
AFFIRMED.
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