John Berge, III v. Marc Antrim , 520 F. App'x 623 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 05 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JOHN W. BERGE, III, No. 11-35428
Petitioner - Appellant, D.C. No. 3:05-cv-00290-RRB
v.
MEMORANDUM *
MARC ANTRIM,
Respondent - Appellee,
FRANK LUNA,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 22, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
Alaska state prisoner John W. Berge, III, appeals the district court’s denial
of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Berge waived his claim that police obtained his confession in violation of
his Sixth Amendment right to counsel when trial counsel failed to press the state
trial court for a ruling on this issue. Failure to press for a ruling constitutes
forfeiture of the claim under Alaska state law. See, e.g., Marino v. State, 934 P.2d
1321, 1327 (Alaska Ct. App. 1997). Procedural default under state law is an
independent and adequate state ground for the Alaska Court of Appeals’ denial of
this claim, thus barring our review. Coleman v. Thompson, 501 U.S. 722, 729
(1991), superseded by statute on other grounds, 28 U.S.C. § 2254(b)(2). Even
were we to reach the merits of this claim, Berge concedes that there is no clearly
established federal law on point.
2. The Alaska Court of Appeals’ denial of two of Berge’s ineffective
assistance of counsel claims was not an unreasonable application of Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984).
(a) Even if counsel had pursued a ruling on the Sixth Amendment issue,
the motion would have been denied. First, the Alaska Court of Appeals recognized
there is a split in authority on when the right to counsel attaches. Second, even if
Berge pressed for a ruling on this issue, the Alaska Court of Appeals did not
unreasonably apply Patterson v. Illinois, 487 U.S. 285, 296–97 (1988), when it
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concluded that, even assuming the right to counsel had attached, Berge waived that
right.
(b) When defense counsel moved to have Berge’s right-to-silence
statements suppressed in full, the trial court denied the motion. It was not
objectively unreasonable for the state court to conclude that Berge failed to show
ineffective assistance of counsel where counsel could have thereafter made a
tactical decision to allow the jury to hear portions of Berge’s statements, because
those statements bolstered Berge’s claim of innocence. Moreover, it was also not
objectively unreasonable for the state court to conclude that, after the statements
were admitted, Berge’s counsel could not have challenged the prosecutor’s cross-
examination of Berge on those statements.
3. Berge’s last ineffective assistance of counsel claim is waived for failure
to raise it in the amended § 2254 petition. See Lacey v. Maricopa Cnty., 693 F.3d
896, 928 (9th Cir. 2012). Even if not waived, the Alaska Court of Appeals’
conclusion that counsel was not incompetent for failure to hire a ballistics expert
was not an unreasonable application of Strickland. The state court concluded
reasonably that, even if ballistics evidence could have bolstered counsel’s
arguments to the jury about the implausibility of Berge’s confession, the State
conceded it could not prove the range or distance at which Taylor was shot.
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Instead, the prosecutor’s theory focused on the details of Berge’s confession (e.g.,
he described shooting Taylor with four bullets before the body was found), not
ballistics. Where defense counsel sought to prove Taylor was still alive at the time
of Berge’s confession, as well as raise other implausibilities including ballistic
evidence, the state court’s finding that Berge did not overcome the presumption of
competent counsel was not objectively unreasonable.
AFFIRMED.
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