Sean O'Brien v. Leland McEwen

FILED

NOT FOR PUBLICATION

AUG 27 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN ALAN O’BRIEN, No. 14-15753

Petitioner - Appellant, D.C. No. 2:10-cv-02472-MCE-

CKD

v.

LELAND MCEWEN, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted July 6, 2015 San Francisco, California

Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Paul L. Friedman, District Judge for the U.S. District Court for the District of Columbia, sitting by designation. Page 2 of 6 1. The state court’s rejection of Sean O’Brien’s claim under Brady v.

Maryland, 373 U.S. 83 (1963), was objectively reasonable. No evidence suggested

that Dr. Rollins was under the influence of drugs when he conducted the autopsy or

testified at trial. The state court…

AMENDED MEMORANDUM **

1. The state court’s rejection of Sean O’Brien’s claim under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), was objectively reasonable. No evidence suggested that Dr. Rollins was under the influence of drugs when he conducted the autopsy or testified at trial. The state court reasonably determined that impeaching Dr. Rollins based on the conduct underlying his drug-related offenses would not have undermined the jury’s reliance on his testimony.

2. The state court reasonably applied Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in rejecting O’Brien’s allegation that his trial attorney’s failure to request a continuance constituted ineffective assistance of counsel. Counsel explained why he chose to proceed with the trial even after receiving belated notice that Wellman had changed his story — he believed that impeaching Wellman’s testimony would be the best trial strategy, that he had an ample basis for doing so already, and that further delay would not be helpful. The state court’s determination that this decision was professionally competent was not objectively unreasonable, and therefore merits…

dissenting:

I agree with Paragraphs 1 and 2 of the disposition but respectfully dissent from Paragraph 3.1 would affirm the judgment in its entirety.

In my view, the state courts reasonably concluded that the additional alibi evidence would not likely have altered the verdict, even if the lawyer had presented it to the jury. See Strickland v. Washington, 466 U.S. 668, 693 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (holding that prejudice must be shown to grant relief on a claim of ineffective assistance of .counsel). The state court’s findings of fact were not unreason: able. See Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003) (stating standard). The state court pointed to the following pieces of evidence, among others, which demonstrated O’Brien’s guilt overwhelmingly:

For those reasons, I would affirm.