Bolin v. Davis, No. 16-99009 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's jury conviction for two counts of first-degree murder and his capital sentence. The panel applied the deferential standard of review in the Antiterrorism and Effective Death Penalty Act (AEDPA) and held that the district court properly denied petitioner's claims that his trial counsel was ineffective in not renewing a motion to change venue based on pretrial publicity and in failing to develop additional mitigating evidence. Furthermore, petitioner did not show that the California Supreme Court's denial of his claim that his trial counsel was ineffective in failing to renew the change of venue motion after jury selection was an unreasonable application of Strickland v. Washington.
The panel granted petitioner's request to expand the certificate of appealability to include his claim that counsel acted ineffectively in not seeking a further continuance to develop additional mitigating evidence for the penalty phase. However, the panel concluded that petitioner has not shown he is entitled to relief under Strickland for counsel's investigation and presentation of mitigating evidence at the penalty phase or for counsel's related determination not to seek a further continuance. Furthermore, even assuming that counsel's performance was constitutionally defective, petitioner cannot show prejudice under AEDPA's deferential standard of review.
Court Description: Habeas Corpus / Death Penalty. The panel affirmed the district court’s denial of California state prisoner Paul Bolin’s habeas corpus petition challenging his jury conviction for two counts of first-degree murder and his capital sentence. Applying the deferential standards of review in the Antiterrorism and Effective Death Penalty Act, the panel held that the district court properly denied Bolin’s claims that his trial counsel was ineffective in not renewing a motion to change venue based on pretrial publicity and in failing to develop additional mitigating evidence. The panel held that Bolin did not show that the California Supreme Court’s denial of his claim that his trial counsel was ineffective in failing to renew the change of venue motion after jury selection was an unreasonable application of Strickland v. Washington. The panel held that reasonable jurists could conclude that Bolin could not overcome the strong presumption that his counsel acted reasonably and appropriately in failing to renew the motion based on pretrial publicity, including episodes of America’s Most Wanted. Bolin did not show that it would be objectively unreasonable for the state court to conclude that counsel could, as a matter of strategy, forego a likely quixotic change of venue motion in exchange for trying to secure a jury that would be more favorable to Bolin. BOLIN V. DAVIS 3 In connection with Bolin’s claim that his counsel acted ineffectively in not seeking a further continuance to develop additional mitigating evidence for the penalty phase, the panel granted Bolin’s request to expend the certificate of appealability to include the entirety of his claim of ineffective assistance in counsel’s failure to investigate and prepare for the penalty phase. The panel held that Bolin was not entitled to relief under Strickland for counsel’s investigation and presentation of mitigating evidence at the penalty phase or for counsel’s related determination not to seek a further continuance. Assuming without deciding that counsel’s performance was constitutionally defective, the panel held that Bolin could not show prejudice under AEDPA’s deferential standard of review. That is, a fairminded jurist could reasonably conclude that the further investigation and presentation of mitigating evidence Bolin claimed should have occurred was not substantially likely to change the outcome. The panel concluded that the mitigating evidence that Bolin claimed his counsel should have discovered and presented was either cumulative of other evidence that counsel did present, or was inconclusive and insufficiently compelling. Further, a reasonable jurist could also conclude that the new mitigating evidence did not overcome the serious aggravating factors associated with Bolin’s crimes and his history of violent criminal conduct.
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