ROBERT MCDANIELS V. RICHARD KIRKLAND, No. 09-17339 (9th Cir. 2015)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on July 25, 2014.
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 24 2015 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ROBERT MCDANIELS, Petitioner - Appellant, U.S. COURT OF APPEALS No. 09-17339 D.C. No. 4:05-cv-00904-PJH v. RICHARD J. KIRKLAND, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, Chief District Judge, Presiding KEELON T. JENKINS, Petitioner - Appellant, No. 11-15030 D.C. No. 3:05-cv-02003-MHP v. MEMORANDUM* MICHAEL S. EVANS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted En Banc June 16, 2015—San Francisco, California Before: THOMAS, Chief Judge and PREGERSON, McKEOWN, W. FLETCHER, BERZON, TALLMAN, CALLAHAN, IKUTA, CHRISTEN, HURWITZ and FRIEDLAND, Circuit Judges. Robert McDaniels and Keelon Jenkins appeal from denials of their separate 28 U.S.C. § 2254 petitions for writs of habeas corpus. We address their Batson claims in a published opinion filed concurrently with this memorandum disposition. Here, we address their ineffective-assistance-of-counsel claims. We affirm the district court’s denial of McDaniels’s habeas petition with respect to his ineffective-assistance-of-counsel claim. Fairminded jurists could disagree about whether McDaniels’s claim is meritorious, which precludes federal habeas relief. See Harrington v. Richter, 562 U.S. 86, 101-05 (2011). Jenkins’s briefing on appeal addresses ineffective-assistance-of-counsel claims for which we did not previously grant a certificate of appealability (“COA”). We construe this briefing as a motion to expand the COA. See 9th Cir. R. 22-1(e). So construed, we grant the motion in part and deny it in part. We deny the motion with respect to Jenkins’s claim under People v. Marsden, 465 P.2d 44 (1970) (in bank), which we recognize as an ineffective-assistance-ofcounsel claim for purposes of federal habeas, see Robinson v. Kramer, 588 F.3d 2 1212, 1216 (9th Cir. 2009). We grant the motion, however, with respect to Jenkins’s other ineffective-assistance-of-counsel claim, which is based on his allegation that trial counsel attacked Jenkins’s credibility at trial. Because this claim is “adequate to deserve encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), we order the State to submit briefing in response to it. We return this claim to the three-judge panel for further proceedings consistent with this disposition. No. 09-17339 AFFIRMED. Motion to expand the certificate of appealability GRANTED IN PART and DENIED IN PART in No. 11-15030; No. 11-15030 REMANDED IN PART to the three-judge panel. 3
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