Keelon Jenkins v. Michael Evans

FILED

NOT FOR PUBLICATION

OCT 14 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEELON T. JENKINS, No. 11-15030

Petitioner - Appellant, D.C. No. 3:05-cv-02003-MHP

v.

MICHAEL S. EVANS, Warden, MEMORANDUM*

Respondent - Appellee.

On Remand from the En Banc Court

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

Before us on remand from the en banc court is Jenkins’s claim that his trial

counsel rendered ineffective assistance, “which is based on his allegation that trial

counsel attacked Jenkins’s credibility at trial.” McDaniels v. Kirkland, 627 Fed.

Appx. 672, 673 (9th Cir. 2015) (unpublished disposition).

Our review is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). Under AEDPA, we are limited to deciding whether the

California Supreme Court’s summary denial of habeas relief was: (1) “contrary to,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. or involved an unreasonable application of, clearly established Federal law,…

*554 MEMORANDUM *

Before us on remand from the en banc court is Jenkins’s claim that his trial counsel rendered ineffective assistance, “which is based on his allegation that trial counsel attacked Jenkins’s credibility at trial.” McDaniels v. Kirkland, 627 Fed.Appx. 672, 678 (9th Cir. 2015) (unpublished disposition).

Our review is governed by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, we are limited to deciding whether the California Supreme Court’s summary denial of habe-as relief was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d)(l)-(2). When reviewing an ineffective assistance claim through the lens of habeas, our review is “doubly deferential.” Yarborough v. Gentry, 540 U.S. 1, 6 , 124 S.Ct. 1 , 157 L.Ed.2d 1 (2003) (per curiam). “The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense…

dissenting:

At Petitioner Keelon Jenkins’s murder trial, a vocal and dramatic dispute between Jenkins and his lawyer played out in front of the jury. Jenkins and his counsel agreed that Jenkins shot a Brink’s truck guard after what he believed to be a staged robbery went awry, 1 but disagreed as to *555 the identity of the man who orchestrated that hold-up: Jenkins maintained—and testified at trial—that a man named Frank Valentine hatched the plot, while Jenkins’s counsel repeatedly told the jury that a man named Anthony Young was responsible. Although I recognize that, under AEDPA, our review of Jenkins’s ineffective assistance claim is “doubly deferential,” Knowles v. Mirzayance, 556 U.S. III, 123, 129 S.Ct. 1411 , 173 L.Ed.2d 251 (2009), I nonetheless think Jenkins has shown that“the state court’s application of the Strickland [v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) ] standard was unreasonable,” Harrington v. Richter, 562 U.S. 86, 101 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011). Accordingly, I would grant Jenkins’s habeas petition and I respectfully dissent from my colleagues’ decision holding otherwise.

I

The conflict between Jenkins and his…