ORLANDO LOPEZ V. TRENT ALLEN, No. 19-16606 (9th Cir. 2022)
Annotate this CasePetitioner raised several ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 688 (1984). The Ninth Circuit affirmed and applied AEDPA deference to the state habeas courts’ denial of relief. Taking as true that trial counsel failed to consult with experts at all, the panel held that even assuming that this failure fell below an objective standard of reasonableness, it did not create the necessary prejudice to warrant relief. The panel further held that it was not objectively unreasonable for the state habeas court to conclude that trial counsel's conduct was not constitutionally deficient and that any error that might have occurred did not create sufficient prejudice to call into question the outcome of the case. The panel held that even if trial counsel’s failure to address the respective heights fell below professional standards, a reasonable jurist could conclude that the outcome of the trial would not have been different if trial counsel had done so.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of Orlando Lopez’s habeas corpus petition challenging his California conviction for multiple crimes resulting from a shooting at a backyard barbecue. Lopez raised several ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 688 (1984), and the panel applied AEDPA deference to the state habeas courts’ denial of relief. Lopez argued that trial counsel was ineffective for failing to consult, appoint, and introduce evidence at trial from an expert on firearms and firearms acoustics. The prosecution’s theory of the case was that two shooters, Paul Braden and Lopez, participated in the shooting both using shotguns. Lopez argued that an expert could have created reasonable doubt as to Lopez’s guilt by providing testimony that the different sounds described by witnesses suggested that the second shooter did not use a shotgun, which would have pointed towards Kevin Stone as the second shooter because the evidence showed that he carried a .22 caliber rifle. Taking as true that trial counsel failed to consult with an LOPEZ V. ALLEN 3 expert at all, the panel held that even assuming that this failure fell below an objective standard of reasonableness, it did not create the necessary prejudice to warrant relief. Lopez argued that trial counsel was ineffective for failing to introduce expert testimony on the behavior of chronic methamphetamine users, which would have demonstrated that Stone was prone to impulsive and violent acts and that his testimony was unreliable. Noting that Stone’s drug addiction and criminal history were made known during the trial, the panel held that it was not objectively unreasonable for the state habeas court to conclude that trial counsel's conduct was not constitutionally deficient and that any error that might have occurred did not create sufficient prejudice to call into question the outcome of the case. Lopez argued that trial counsel was ineffective for failing to use Stone’s prior inconsistent statements to impeach Stone and Sergeant Clements. The panel held that a reasonable jurist could conclude that trial counsel’s decision to not impeach Stone and Sergeant Clements with the prior statements was not objectively unreasonable, and that the state court could reasonably conclude that there is not a reasonable probability that the outcome of the proceedings would have been different if trial counsel had more forcefully attempted to impeach them. Lopez argued that trial counsel was ineffective for failing to introduce evidence of the respective heights of those involved in the shooting. The panel held that even if trial counsel’s failure to address the respective heights fell below professional standards, a reasonable jurist could conclude that the outcome of the trial would not have been different if trial counsel had done so. 4 LOPEZ V. ALLEN Lopez argued that trial counsel was ineffective for failing to request a jury instruction on the need to corroborate accomplice testimony. The panel held that a reasonable jurist could conclude that any error by counsel in failing to request such an instruction was harmless and did not create sufficient prejudice to meet the Strickland standard. Lopez argued that the cumulative impact of trial counsel’s individual deficiencies was sufficiently prejudicial to warrant habeas relief. The panel held that because Lopez failed to establish multiple errors of constitutional magnitude, there can be no accumulation of prejudice amounting to a denial of due process or meeting the Strickland standard. Dissenting, Judge Graber wrote that Lopez’s trial counsel provided ineffective assistance by failing to consult with and failing to introduce evidence from an expert in firearm acoustics, that no fairminded jurist could reasonably conclude that there was no prejudice, and that the California courts’ conclusion to the contrary unreasonably applied Strickland.
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