Michael Demirdjian v. William Sullivan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DEMIRDJIAN, No. 09-56453 Petitioner-Appellant, D.C. No. v. 2:04-cv-08245-GHK-JTL

CONNIE GIPSON, Warden, Respondent-Appellee. OPINION

Appeal from the United States District Court for the Central District of California George H. King, Chief District Judge, Presiding

Argued and Submitted May 12, 2014 Pasadena, California

Filed August 10, 2016

Before: John T. Noonan, Jr., Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher; Dissent by Judge Noonan SUMMARY*

Habeas Corpus

The panel affirmed the district court’s judgment dismissing California state prisoner Michael Demirdjian’s habeas corpus petition challenging his conviction and sentence for murdering two teenage boys with intent to inflict torture, committed when Demirdjian was 15 years old.

Demirdjian claimed that his counsel was ineffective by failing to challenge statements by the prosecutor as either improper comments on Demirdjian’s decision not to testify, in violation of Griffin v. California, 380 U.S. 609 (1965), or improper shifting…

Dissent by Judge NOONAN

OPINION

Michael Demirdjian appeals the denial of his 28 U.S.C. § 2254 habeas petition. In 2001, he was convicted of murdering two teenage boys with intent to inflict torture; he was 15 years old at the time of the crimes. During closing argument, the prosecution repeatedly commented on the defense’s failure to explain key incriminating evidence or use competent evidence to support its exculpatory theories. Instead of objecting, defense counsel rebutted the comments by giving non-incriminating explanations of the evidence and reminding the jury the prosecution bore the burden of proof. Demirdjian was later sentenced to two consecutive terms of 25 years to life.

In his habeas petition, Demirdjian claims his counsel was ineffective by failing to challenge the prosecution’s statements as either improper comments on Demirdji-an’s decision not to testify, in violation of Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), or improper shifting of the burden of proof to the defense. He also claims his sentence violates the Eighth Amendment because it is the “functional equivalent” of a mandatory life-without-parole sentence, and he…

dissenting:

“Difficult” is the term chosen by the Supreme Court to characterize the process of a federal court reviewing a state criminal conviction under AEDPA. “Difficult” is not the same as “impossible.” The Supreme Court has not cut off our review of state criminal convictions. Nor has Congress eliminated our review.

We are not engaged in an illusory examination of the proceedings that have taken place. We may not reverse the state court if “any theories or arguments could have supported” the state court’s denial of relief. Harrington v. Richter, 562 U.S. 86, 102 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011). We are, therefore, bound tp consider not only the actual reasoning, of the state court, but the broader rapge of reasons that could support the result reached by that court. “Difficult,” not impossible.

The standard set by the Supreme Court makes the test objective. The standard is not the subjective state of mind of the actual state judge but the objective test of what a properly functioning state judge would have done.

Under California law, a prosecutor of murder need not prove motive. People v. Solomon, 49 Cal.4th 792 , 112 Cal.Rptr.3d 244 , 234 P.3d 501, 520 (2010).…