Robert McDaniels v. Richard Kirkland

MEMORANDUM

McDaniels and Jenkins (Petitioners) appeal from the district courts’ judgments denying their separate 28 U.S.C. § 2254 habeas petitions. Petitioners were tried and convicted together in the Alameda County Superior Court of the State of California on a charge of first degree murder, among others. In a separately filed published disposition, we considered their argument that the prosecutor engaged in racial discrimination while selecting the jury. Here we deal with their individual claims that their counsel provided ineffective assistance. We have jurisdiction under 28 U.S.C. § 2253 and, applying de novo review, we affirm.

McDaniels’s counsel did not provide ineffective assistance when counsel told a witness that McDaniels wanted her to change her testimony because reasonable jurists could disagree as to whether the outcome of the trial would have been different had counsel not made those statements. See Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 785-87 , 178 L.Ed.2d 624 (2011).

Jenkins raises an ineffective assistance argument that was not part of his Certificate of Appealability (COA), which we construe as a motion to expand the COA. 9th Cir. R. 22-1(e). So…