FILED

NOT FOR PUBLICATION

MAR 26 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

APRIL PITTS, No. 16-56509

Petitioner-Appellant, D.C. No. 2:14-cv-06427-VAP-KES

v.

MEMORANDUM*

DEBORAH JOHNSON,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted March 9, 2018 Pasadena, California

Before: W. FLETCHER and OWENS, Circuit Judges, and MOSKOWITZ,** Chief District Judge.

Petitioner-Appellant April Pitts (“Petitioner”) appeals the denial of her

petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253.

We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barry Ted Moskowitz, Chief United States District Judge for the Southern District of California, sitting by designation. Petitioner’s federal habeas petition is governed by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Under AEDPA, we may not grant

habeas relief unless the last reasoned state-court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “was 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)(1)–(2). The last reasoned state-court

decision was the California Court of Appeal’s denial of Petitioner’s claim on July

25, 2013.

The California Court of Appeal’s decision was not “contrary to” clearly

established federal law. 28 U.S.C. § 2254(d)(1). To be “contrary to” clearly

established federal law, the state court must have “reache[d] a legal conclusion

opposite the Supreme Court’s or conclude[d] differently on an indistinguishable set

of facts.” DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). Here, the state

court expressly applied the proper standard for ineffective assistance of counsel

(“IAC”) claims established in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, Petitioner must show that her “counsel’s representation fell

below an objective standard of reasonableness,” and that she was prejudiced as a

result. 466 U.S. at 688. Strickland itself denied an IAC claim alleging an

2 unreasonable failure to investigate. Id. at 699–700. Petitioner points to no

“indistinguishable” Supreme Court case granting relief based on such a claim.

The California Court of Appeal’s decision also did not “involve[] an

unreasonable application of” clearly established federal law. 28 U.S.C.

§ 2254(d)(1). To meet this “difficult” standard, Petitioner needed to show that “the

state court’s ruling . . . was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Moreover, because

Petitioner’s ineffective assistance of counsel claim is governed by the “general”

Strickland standard, we must be “doubly deferential” to the state court’s

evaluation. Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (per curiam) (quoting

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

Here, there was room for fairminded disagreement about the reasonableness

of counsel’s performance. Petitioner argues that her counsel should have done

more to pursue the misidentification defense, but “[a]n attorney need not pursue an

investigation that would be fruitless” or “harmful to the defense.” Harrington, 562

U.S. at 108. Pursuing the potential misidentification evidence that Petitioner

describes would have been fruitless, if not harmful. For example, even if Jakia,

3 Dee, or Williams could have been located, they likely would have emphasized,

rather than minimized, Petitioner’s role in the robbery in order to protect their own

interests. Especially in the case of Williams, “trial counsel, as a matter of strategy,

was much happier with having [her] as an empty chair to which he could point,

without facing the danger of refutation.” Smith v. Stewart, 140 F.3d 1263, 1273

(9th Cir. 1998). Similarly, counsel rejected the idea of introducing a photograph of

Williams at trial based on the risk that the robbery victim would only become more

certain of her identification of Petitioner after seeing the photograph. This

calculation, along with counsel’s other decisions, are strongly presumed to result

from “reasonable professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189

(2011) (quoting Strickland, 466 U.S. at 690). The cases that Petitioner cites do not

support Petitioner’s attempts to rebut that presumption. See, e.g., Rompilla v.

Beard, 545 U.S. 374, 383–84 (2005) (addressing trial counsel’s failure “to examine

the court file on Rompilla’s prior conviction,” which was “a public document,

readily available for the asking at the very courthouse where Rompilla was to be

tried”); Wiggins v. Smith, 539 U.S. 510, 524–25 (2003) (addressing penalty phase

counsel’s failure to “expand their investigation beyond the [pre-sentence

investigation] and [Department of Social Services] records,” and noting that

“counsel uncovered no evidence in their investigation to suggest that a mitigation

4 case . . . would have been counterproductive, or that further investigation would

have been fruitless”).

There was also room for fairminded disagreement about the prejudice

resulting from any deficiency in counsel’s performance. Petitioner needed to

demonstrate “a reasonably probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Harrington, 562 U.S. at

104 (quoting Strickland, 466 U.S. at 694). Especially given the confidence at trial

of the robbery victim in her identification of Petitioner, and the damning

confession available as rebuttal evidence, it was not unreasonable for the state

court to find no reasonable probability of a different result.

Finally, the California Court of Appeal’s decision was not “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)(2). Petitioner argues that the state

court unreasonably determined that counsel possessed a photograph of Williams.

But the state court simply recounted counsel’s confused testimony on the matter,

without resolving the factual issue.

AFFIRMED.

5