Whether the Sixth Amendment requires a finding of prejudice under Strickland v. Washington when assessing ineffective assistance of counsel claims in the context of gang-related murder trials

No question identified. : INDEX TO EXHIBITS Ninth Circuit Memorandum Opinion, November 22, 2024…..Exhibit A Exhibit A NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL FIMBRES , Petitioner -Appellant , v. O’BRIAN BAILEY, Acting Warden , Respondent -Appellee . No. 21-55885 D.C. No. 2:19-cv-10113 -DOC -KS MEMORANDUM* Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Argued and Submitted May 1 7, 2024 Pasadena, California Before: COLLINS , H.A. THOMAS , and JOHNSTONE , Circuit Judges. A California jury convicted Michael Fimbres of first-degree murder in connection with the shooting death of Frank Taylor, and Fimbres was sentenced to “25 years to life for the murder conviction, plus 25 years to life for [a statutory] firearm enhancement.” On direct appeal, the California Court of Appeal rejected Fimbres’s claim that his trial counsel had been ineffective in conducting her cross examination of the State’s gang expert, and the court affirmed his conviction . The California Supreme Court summarily denied Fimbres’s petition for review. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36 -3. FILED NOV 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Case: 21-55885, 11/22/2024, ID: 12915302, DktEntry: 43-1, Page 1 of 5(2 of 6) 2 Fimbres subsequently raised that same ineffective assistance claim in a federal petition for a writ of habeas corpus, and t he district court denied the petition . Fimbres timely appealed , and a panel of this court granted a certificate of appealability as to Fimbres’s ineffective assistance claim. We have jurisdiction under 28 U.S.C. § 1291 and § 2253. Reviewing the district court’s decision de novo , Williams v. Woodford , 384 F.3d 567, 586 (9th Cir. 2004) , we affirm . Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant habeas relief “with respect to any claim that was adjudicated on the merits in State court proceedings” —such as Fimbres’s ineffective assistance claim —“unless the adjudication of the claim[] (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was ba sed on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under this deferential standard, the writ may be granted only if the state court’s rejection of th e claim on the merits “was so lacking in justification” that no “fairminded” jurist could agree with it , Harrington v. Richter , 562 U.S. 86, 103 (2011) , or if it rested on factual findings that “plainly misapprehend[ ed] or misstat[e d] the record ; fail[ed] to consider key as pects of the record ; [or] ignor[e d] ‘highly probative ’ evidence supporting the petitioner’s claim,” McGill v. Shinn , 16 Case: 21-55885, 11/22/2024, ID: 12915302, DktEntry: 43-1, Page 2 of 5(3 of 6) 3 F.4th 666, 685 (9th Cir. 2021) ( citations omitted ). In applying these standards, we review “the last reasoned state court decision on the merits” of a petitioner’s habeas claim. Reis-Campos v. Biter , 832 F.3d 968, 973 (9th Cir. 2016). Here, that is the California Court of Appeal’s decision. A claim of ineffective assistance requires a showing that counsel’s performance was deficient and that the deficient performance prejudice d the defendant. See Strickland v. Washington , 466 U.S. 668 , 687 (1984). The California Court of Appeal concluded that Fimbres failed to establish either prong of the Strickland test. Addressing only the prejudice prong, we conclude that habeas relief is unwarranted here under AEDPA’s deferential standard. Fimbres contends that his counsel’s cross -examination was ineffective because, in his view, it reinforced the State’s t