FILED

NOT FOR PUBLICATION

SEP 9 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISMAIL HASSAN, No. 18-36066

Petitioner-Appellant, D.C. No. 2:18-cv-00067-JCC

v.

MEMORANDUM*

MIKE OBENLAND,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted May 8, 2020** Seattle, Washington

Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We examine the

Washington Supreme Court decision to determine whether it “was contrary to, or

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

* 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). determined by the Supreme Court of the United States,” or whether it “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). It was not.

The Supreme Court holding at issue was Strickland v. Washington, 466 US

668, 687–90, 694 (1984), under which Hassan’s habeas showing had to

demonstrate both deficient performance, subject to a “strong presumption” that

counsel’s performance might be considered sound trial strategy, and prejudice to

the defense with a reasonable probability of a different result had counsel

proceeded differently. That showing was not made.

The Washington Supreme Court’s holding was based on the proposition that

counsel may reasonably have calculated that a lesser included offense instruction

would undermine defendant’s misidentification strategy. That holding is

reasonable. Hassan’s claim that he was not the shooter might indeed have been

weakened by a claim that even if he was the shooter, his intentions were not as bad

as the charge required.

2 Hassan, in his artfully phrased declaration, does not claim that he would

have asked counsel to ask for a lesser included offense instruction had his lawyer

consulted him about it. His declaration says merely that he “would not have had

any problem” with it. He appears to be saying that he would not have objected to

counsel’s asking for the instruction, not that he would have told his lawyer to do

so.

Had Hassan obtained the instruction, it is hard to see how a jury could have

found a predicate in the evidence to convict him of the lesser but not the greater

offense. Either he was not the shooter, as he claimed, or he was, and had lied.

Hassan’s lawyer put on a strong defense, complete with an excellent expert

witness, to support Hassan’s claim that he was not the shooter and was

misidentified. The jury rejected it, evidently disbelieving Hassan. The

Washington Supreme Court made no prejudicially unreasonable determinations

which might entitle Hassan to relief under 28 U.S.C. § 2254.

AFFIRMED.

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