NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEMAR GANT, No. 19-15265

Petitioner-Appellant, D.C. No. 2:16-cv-00528-JAD-NJK v.

BRIAN WILLIAMS, SR.; ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted April 17, 2020** San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.

* 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 Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Lemar Gant appeals the district court’s denial of his 28 U.S.C. § 2254 petition

challenging his conviction in Nevada state court for being an ex-felon in possession

of a firearm. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Defense counsel’s failure to run a criminal background check on a witness

whose incarceration impeached his exculpatory testimony was not constitutionally

deficient. The adequacy of counsel’s witness investigation depends on whether it

was “reasonable considering all the circumstances,” see Strickland v. Washington,

466 U.S. 668, 688 (1984), and the state court had reason to conclude that it was, see

Harrington v. Richter, 562 U.S. 86, 105 (2011). After learning about the witness

through Gant’s girlfriend, counsel sent an investigator to interview the witness,

reviewed the investigator’s report, and shared the testimony with Gant himself. It

was conceivable, if not entirely reasonable, then, for the state court to conclude that

Gant’s nonchalant response to the expected testimony gave counsel no reason to

doubt its veracity. See Strickland, 466 U.S. at 691 (“[W]hen a defendant has given

counsel reason to believe that pursuing certain investigations would be fruitless or

even harmful, counsel’s failure to pursue those investigations may not later be

challenged as unreasonable.”). And although the devastating impact of the witness’s

previously unknown incarceration on Gant’s defense understandably has caused

counsel to reconsider his vetting process, “the harsh light of hindsight” cannot alter

our analysis. See Bell v. Cone, 535 U.S. 685, 702 (2002); see also Richter, 562 U.S.

2 at 105 (“The question is whether an attorney’s representation amounted to

incompetence under prevailing professional norms, not whether it deviated from best

practices or most common custom.” (quotation marks and citation omitted)).

We reach the same conclusion concerning defense counsel’s failure to ensure

receipt of (or check the electronic docket for) the prosecution’s supplemental witness

list. Although that filing likely would have alerted counsel to his own witness’s

incarceration, the state court reasonably concluded that this omission did not render

counsel’s performance constitutionally deficient. Gant offers no evidence that

counsel had either seen the supplemental witness list, noticed an issue with receiving

previous filings that he could have corrected, or otherwise learned about the

prosecution’s additional witness. That the state court made no express finding on

this point is of no moment. Already having failed to advance a more plausible

explanation, Gant cannot litigate the issue anew. See Richter, 562 U.S. at 98–99.

We must, and do, presume that the state court’s denial of relief included a rejection

of this argument. See id. at 99–100.

AFFIRMED.

3

FILED

Gant v. Williams, 19-15265

MAY 11 2020

PAEZ, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with my colleagues that the Nevada Court of Appeals’ decision

rejecting Gant’s ineffective assistance of counsel claim was not an unreasonable

application of Strickland v. Washington, 466 U.S. 668 (1984). I arrive at this

conclusion through a different path, however. I seriously question whether the

state court’s determination that trial counsel’s defense strategy of calling a single

witness without conducting any independent investigation of that witness’s

background or the story he offered was constitutionally reasonable. Despite my

reservations, even assuming that counsel’s performance was deficient, Gant’s

claim fails on Strickland’s prejudice prong, as the state court reasonably

concluded. Gant argues that, but for trial counsel’s error, he would have called one

or more witnesses to testify that the officer planted the gun. But the evidence at

trial was that it was “highly unlikely” that Gant’s DNA could have been found on

the gun without him having handled the gun himself. Thus, Gant has not shown it

was “necessarily unreasonable” for the Nevada Court of Appeals to conclude that

“he had failed to undermine confidence in the jury’s” verdict. Cullen v. Pinholster,

563 U.S. 170, 190 (2011).

Accordingly, I concur in the judgment.