Robert Johnson v. Raymond Madden

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 24 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DAVID JOHNSON, No.14-55905

Petitioner - Appellant, D.C. No. 5:12-cv-01580-JFW-SS

v.

MEMORANDUM*

RAYMOND MADDEN,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted May 2, 2016 Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and WILKEN,** Senior District Judge.

Robert David Johnson appeals a district court order denying his habeas

corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

The California Supreme Court’s decision to deny Johnson’s ineffective

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court for the Northern District of California, sitting by designation. assistance of counsel claim was not an unreasonable application of…

MEMORANDUM **

Robert David Johnson appeals a district court order denying his habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

The California Supreme Court’s decision to deny Johnson’s ineffective assistance of counsel claim was not an unreasonable application of clearly established federal law. 28 U.S.C. § 2254 (d). To obtain relief on his state court petition, Johnson was required *519 to show “both that his counsel provided deficient assistance and that there was prejudice as a result.” Harrington v. Richter, 562 U.S. 86, 104 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011). A petitioner attempting to show that his counsel’s performance was deficient must overcome “a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.” Id. (internal quotation marks omitted). And to show prejudice, the petitioner must demonstrate, that “[c]ounsel’s errors [were] so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. (internal quotation marks omitted). Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of the state court’s decision…

dissenting:

The California gang enhancement applies when an individual commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Cal. Penal Code § 186.22 (b)(1). Notably, the first prong of the statute requires that the crime be committed in association with a “criminal street gang” while the second requires that the defendant act with the intent to further conduct by “gang members.”

The fact that a defendant committed a crime with gang members does not satisfy the first prong. Indeed, the California Supreme Court has noted that the California State Legislature included the first prong to make “clear that a criminal offense is subject to increased punishment under the [gang enhancement] only if the crime is gang related.” People v. Albillar, 51 Cal.4th 47, 60 , 119 Cal.Rptr.3d 415 , 244 P.3d 1062 (2010) (internal quotation marks omitted). “Not every crime committed by gang members is related to a gang” and “it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.”…