Zachary Robey v. Brenda Cash , 692 F. App'x 847 ( 2017 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    JUN 27 2017
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ZACHARY TIBRE ROBEY,                             No.   14-16978
    Petitioner-Appellant,              D.C. No. 4:11-cv-02054-PJH
    v.
    MEMORANDUM*
    BRENDA CASH, Acting Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Phyllis J. Hamilton, Chief Judge, Presiding
    Argued and Submitted June 12, 2017
    San Francisco, California
    Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,** District
    Judge.
    California state prisoner Zachary Tibre Robey appeals the district court’s
    denial of his 
    28 U.S.C. § 2254
     habeas corpus petition. Robey was convicted of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Lawrence L. Piersol, United States District Judge for
    the District of South Dakota, sitting by designation.
    dissuading a witness, extortion, possession of methamphetamine, and two counts
    of first degree robbery.
    Robey argues that both his counsel at trial and his counsel on direct appeal
    provided ineffective assistance, under Strickland v. Washington, 
    466 U.S. 668
    (1984), in regard to his extortion conviction, 
    Cal. Penal Code § 518
    . To succeed
    on his claims, Robey must show that his counsel’s performance fell below an
    objective standard of reasonableness and that there was a reasonable probability
    that, but for the unreasonable performance, the result would have been different.
    See Strickland, 
    466 U.S. at 687
    . Robey’s claims were rejected in California state
    court. Reviewing the district court’s decision de novo, the state court holdings
    were not “contrary to, or . . . an unreasonable application of” clearly established
    Supreme Court precedent; nor were the state court holdings “based on an
    unreasonable determination of the facts in light of the evidence presented.” See 
    28 U.S.C. § 2254
    (d). We therefore affirm.
    Robey first argues that his trial counsel was prejudicially deficient for failing
    to object to the prosecution’s statement that, to prove extortion, “there’s no
    requirement for [the prosecution] to prove that the defendant actually received the
    money.” The California Court of Appeal interpreted the state extortion law to
    allow for conviction where the defendant himself did not personally receive any
    2
    property but rather received it through an agent. People v. Robey, 
    2009 WL 3208689
    , at *9–10 (Cal. Ct. App. Oct. 7, 2009). Deferring to the state court’s
    interpretation of its own law, see Estelle v. McGuire, 
    502 U.S. 62
    , 67–68 (1991),
    the state court reasonably concluded that the prosecution did not misstate the law.
    The prosecutor was explaining that the state did not need to prove that Robey
    himself received money from the victim; it needed only to prove that Robey
    received the money through an agent. Robey’s trial counsel was not ineffective for
    failing to object.
    As to ineffectiveness of appellate counsel, Robey contends counsel should
    have argued that the trial court improperly admitted hearsay evidence that Robey’s
    agent did not have the victim’s money when he returned from meeting Robey. The
    state court reasonably concluded there was no prejudice. Under California law, the
    extortion was complete upon the agent’s receipt of the money from the victim.
    Robey also argues that his appellate counsel should have claimed
    instructional error because the trial court did not instruct the jury on finding an
    agency relationship. Again, however, Robey has not shown prejudice. The only
    evidence available to the jury supported the existence of an agency relationship.
    Thus, an agency instruction would have done nothing to help Robey’s chances of
    3
    obtaining a different result. Robey’s appellate counsel was not constitutionally
    ineffective for not making a futile argument.
    Accordingly, the district court did not err by denying Robey’s habeas
    petition under 
    28 U.S.C. § 2254
    .
    AFFIRMED.
    4
    

Document Info

Docket Number: 14-16978

Citation Numbers: 692 F. App'x 847

Filed Date: 6/27/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023