NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD DEMETRIUS THOMAS, No. 18-15277

Petitioner-Appellant, D.C. No. 3:15-cv-05783-JD

v.

MEMORANDUM*

WILLIAM MUNIZ, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted April 15, 2020** San Francisco, California

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** Senior District Judge.

Petitioner Ronald Demetrius Thomas was convicted at jury trial for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ivan L.R. Lemelle, Senior United States District Judge for the Eastern District of Louisiana, sitting by designation. committing second-degree murder. He was sentenced to prison for 40 years to life.

Prior to sentencing, the trial court denied Thomas’ motion for new trial based on

ineffectiveness of counsel. In subsequent appeals, the California Court of Appeal

(CCA) and the California Supreme Court rejected Thomas’ claims that trial counsel

rendered ineffective assistance. This appeal stems from the district court’s denial of

petitioner’s motion for habeas corpus relief under 28 U.S.C. § 2254.

Petitioner argues the CCA applied the wrong standard of review to determine

whether trial counsel’s conduct prejudiced petitioner. However, the state appellate

court referenced the correct standards under Strickland v. Washington, 466 U.S. 668

(1984). The Supreme Court has made it clear that we review the state court’s

ineffective assistance of counsel determination deferentially under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Woodford v. Visciotti, 537

U.S. 19, 27 (2002). Thus, we review the district court’s decision to grant or deny

habeas relief de novo, and the state court opinion or decision is viewed pursuant to

a highly deferential standard that gives the state court the “benefit of the doubt.” Id.

at 24. Federal habeas relief is available if the state court’s ruling was “contrary to,

or involved an unreasonable application of,” Supreme Court law that was “clearly

established” at the time the state court adjudicated the claim on the merits. 28 U.S.C.

§ 2254(d)(1); Greene v. Fisher, 565 U.S. 34, 38 (2011).

2 Petitioner contends that the CCA erred when it failed to find ineffective

assistance and Strickland prejudice from trial counsel’s opening statements.1 The

CCA reasoned that an attorney may have a “valid tactical reason for changing

strategy during trial” and concluded that it was not necessary to determine whether

counsel’s actions “fell beyond the range of reasonable trial tactics because any error

in making the opening statement was harmless.” The court found ample evidence

to establish petitioner’s guilt, such that a different outcome would not have resulted

absent counsel’s error. Specifically, the CCA called attention to the fact that

petitioner had been identified by a witness who knew and maintained prior contact

with him, Z.T., and that her testimony was credible and corroborated by P.L., another

witness who previously met petitioner with Z.T. Further, cell-phone records placed

petitioner within the same area of the crime on the date and time in question and

established that petitioner called Z.T., one of the eye witnesses, during that same

time. The lower courts found no promise of an alibi was made and, thusly, no

prejudice. Cf. Saesee v. McDonald, 725 F.3d 1045, 1049–50 (9th Cir. 2013).

Contrary to petitioner’s belief, the CCA opinion sufficiently delved into federal

1 Thomas’ counsel told the jury, “[The prosecutors] have to prove to you that [petitioner] was present at the scene, not in or about the area of the scene. . . That's not going to pan out in this evidence . . . [T]he prosecution will not be able to show that it was [petitioner] because he was elsewhere. He was not at the scene of the crime. That's what the evidence will show." People v. Thomas, 2014 WL 3366567, at *5 (Cal. Ct. App. July 10, 2014).

3 precedent regarding prejudice. Its decision was not objectively unreasonable or

contrary to law. The cases cited by petitioner are unpersuasive when scrutinized

against the facts of this case.

Petitioner also argues trial counsel’s decision to call a character witness

prejudiced him by bringing out his prior bad acts upon cross-examination by the

prosecution. The state courts characterized that decision as tactical, and observed

that the witness “humanized” petitioner. The trial court stated positive things

resulted from the decision and the testimony “indicat[ed] that [petitioner] was

always respectful, and that he was a good kid, [and that] he was mild mannered.”

The CCA observed that the fact that “the jury was instructed the attorneys’ remarks

during opening statement and closing argument were not evidence” militated in

favor of finding the decision to place the character witness on the stand not

ineffective assistance of counsel. We do not fault the district court’s observation

that without the character witness testimony, it is feasible that the jury would have

elected to find petitioner guilty of the higher charge of first-degree murder, rather

than the lesser offense of second-degree murder. Moreover, the state court

reasonably determined that even if trial counsel’s decision was deficient, it did not

result in prejudice to petitioner because of the overwhelming evidence condemning

him.

4 The standard for granting habeas relief for ineffective assistance of counsel is

not whether trial counsel’s actions were reasonable, rather it is “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.”

Harrington v. Richter, 562 U.S. 86, 105 (2011). The state courts’ rulings are

reasonable applications of controlling precedent.

AFFIRMED.

5