NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORDY EZEQUIEL OCHOA, AKA Jordy No. 21-55906 Ochoa, AKA Jordy Ezequil Ochoa-Cordova, D.C. No. Petitioner-Appellant, 2:11-cv-06864-JGB-GJS

v.

MEMORANDUM*

L. R. THOMAS, Metropolitan Detention Center, Los Angeles, California; DONALD

H. BLEVINS,

Respondents-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted September 11, 2024 Pasadena, California

Before: IKUTA, FRIEDLAND, and LEE, Circuit Judges.

Jordy Ochoa appeals the district court’s denial of his petition for a writ of

habeas corpus. Our jurisdiction arises under 28 U.S.C. §§ 1291, 2253. We review

the district court’s denial de novo and affirm. Garding v. Mont. Dep’t of Corr.,

105 F.4th 1247, 1256 (9th Cir. 2024).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Ochoa was charged with being a felon in possession of a firearm. In a separate

case, the court scheduled a probation hearing for after the criminal trial to determine

whether Ochoa had possessed a firearm in violation of his probation. In his criminal

trial, the jury hung. After declaring a mistrial, the judge announced in a separate

probation hearing that she would not revoke his probation, stating that the

prosecution had not proved he possessed a gun by a preponderance of the evidence.

Ochoa was later retried on the criminal charge and convicted.

He seeks a writ of habeas on two grounds. First, he claims California violated

his Fifth Amendment right against double jeopardy when it successfully retried him

for unlawful possession of a firearm by a felon. Second, he contends his trial

attorney’s failure to object to the second trial on double jeopardy grounds constituted

ineffective assistance of counsel in violation of the Sixth Amendment. Both

arguments fail.

Under 28 U.S.C. § 2254(d)(1), a federal court can grant a writ of habeas

corpus only if the state adjudication contradicts or unreasonably applies “clearly

established Federal law, as determined by the Supreme Court of the United States.”

The Antiterrorism and Effective Death Penalty Act (AEDPA) thus requires federal

courts to apply a highly deferential standard of review. Renico v. Lett, 559 U.S. 766,

773 (2010). Absent a clear answer from the Supreme Court to the question

presented, the state court’s decision should stand. See Wright v. Van Patten, 552

2 U.S. 120, 125-26 (2008) (per curiam).

Double Jeopardy Claim. Ochoa argues that he should not have been retried

on the felon in possession of a firearm charge because the judge had declined to

revoke his probation, finding that the prosecution did not prove by a preponderance

that Ochoa unlawfully possessed a gun. Ochoa claims that this finding should

preclude the later criminal prosecution because double jeopardy incorporates

collateral estoppel principles. Ashe v. Swenson, 397 U.S. 436, 442-43 (1970).

His argument fails because the Supreme Court has never established that a

finding from a probation hearing—which is a civil proceeding, see Gagnon v.

Scarpelli, 411 U.S. 778, 781 (1973) (“[T]he revocation of parole is not a part of the

criminal prosecution,”)—can qualify as a judgment of acquittal for double jeopardy

purposes. Rather, the Court has applied double jeopardy only when both

proceedings are criminal. Ashe, 397 U.S. at 446. Thus, Ochoa’s double jeopardy

claim is not based on “clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). The cases that he cites only

clearly establish that judgments in criminal proceedings can constitute acquittals,

and probation hearings are not criminal proceedings. See Evans v. Michigan, 568

U.S. 313, 318 (2013) (defining “acquittal” in the context of a criminal proceeding).

Ineffective assistance of counsel. Ochoa also argues his trial lawyer’s failure

to object on double jeopardy grounds to the second trial amounts to ineffective

3 assistance of counsel in violation of the Sixth Amendment.1 An ineffective

assistance of counsel claim requires a showing that (1) counsel performed deficiently

and, as a result, (2) the client suffered prejudice. Strickland v. Washington, 466 U.S.

668, 687-88 (1984). The alleged failure of Ochoa’s trial lawyer falls well short of

satisfying either prong of Strickland.

To find deficient performance, the court must review trial counsel’s actions

deferentially and conclude the reviewed actions fell “outside the wide range of

professionally competent assistance.” Id. at 689-90. Failure to raise meritless

arguments does not amount to deficient action. See Boag v. Raines, 769 F.2d 1341,

1344 (9th Cir. 1985). Further, under AEDPA’s § 2254(d)(1), after a state court

adjudicates an ineffective assistance claim, the federal court’s review of the trial

attorney’s performance becomes doubly deferential because of the further deference

given to the state court’s earlier review. Harrington v. Richter, 562 U.S. 86, 105

(2011).

Ochoa’s trial attorney’s actions do not count as deficient because no caselaw

would lead a lawyer to expect the double jeopardy claim to succeed. Given our

1 Prior to oral argument before our court, Ochoa never argued that counsel was ineffective for failing to move for a directed verdict in the first trial after the court’s probation ruling. That argument is therefore forfeited. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018) (“The usual rule is that arguments raised for the first time on appeal or omitted from the opening brief are deemed forfeited.”).

4 highly deferential standard and our conclusion above, we cannot say the decision by

Ochoa’s attorney to not make the double jeopardy argument qualifies as deficient

performance. See Boag, 769 F.2d at 1344.

Ochoa also suffered no prejudice because raising a double jeopardy objection

to the second trial would not have prevented his conviction. A court finds prejudice

upon a showing of a substantial likelihood that, but for counsel’s deficient

performance, the outcome at trial would differ. Harrington, 562 U.S. at 112. He

has failed to meet that bar.

We AFFIRM the district court’s denial of Ochoa’s habeas corpus petition.

5