FILED

NOT FOR PUBLICATION

SEP 30 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIONE LUI, No. 19-35744

Petitioner-Appellant, D.C. No. 2:18-cv-00893-TSZ

v.

MEMORANDUM*

MIKE OBENLAND,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted September 4, 2020** Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and SOTO,*** District Judge.

Washington state prisoner Sione Lui appealed the district court’s denial of

his habeas petition alleging ineffective assistance of counsel. We have jurisdiction

* 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 James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. under 28 U.S.C. §§ 1291 and 2253 and review denials of habeas relief de novo.

Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). We affirm.

After Lui was convicted of second-degree murder in state court and

exhausted his appeals, he filed a state personal restraint petition alleging that his

counsel had been ineffective for sleeping through trial, failing to adequately

investigate scent-track evidence, and failing to object to detective testimony and

closing argument statements. The Washington Court of Appeals denied his

petition, and the Washington Supreme Court affirmed. Lui then filed a federal

habeas petition, alleging the same ineffective assistance of counsel claims, which

the district court denied upon the recommendation of the magistrate judge.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), this court may not grant relief with respect to any claim that a state

court adjudicated “on the merits,” unless that decision either: (1) “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”;

or (2) “resulted in a decision that 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). The Washington Supreme Court did not act contrary to clearly

established federal law or unreasonably determine the facts in denying Lui relief.

2 First, the Washington Supreme Court acted in accordance with existing

Supreme Court precedent in requiring a showing of prejudice pursuant to

Strickland v. Washington, 466 U.S. 668 (1984), for petitioner’s allegations of

sleeping counsel. The Supreme Court has not extended the presumption of

prejudice reserved for extraordinary cases of ineffective assistance by United

States v. Cronic, 466 U.S. 648 (1984), to cases of sleeping counsel. The Supreme

Court has also declined to categorically extend the doctrine to any temporary

absence unless counsel’s absence was during a “critical stage.” Woods v. Donald,

575 U.S. 312, 317–18 (2015). The Washington Supreme Court was not required to

extend the presumption of prejudice to a new context. White v. Woodall, 572 U.S.

415, 426 (2014). Nor was the state court’s decision to apply Strickland to

contested claims of sleeping counsel objectively unreasonable. The court noted

that Lui had not cited any particular moment when counsel was allegedly sleeping,

and the court's own review of the trial record disclosed no indication that counsel

had slept or was inattentive.

Second, the Washington Supreme Court did not unreasonably apply

Strickland to Lui’s claims that his attorney failed to adequately investigate and

present opposing expert testimony to rebut the state’s scent-track evidence. Except

in particularly egregious cases, claims of ineffective assistance of counsel are

3 analyzed under Strickland, which requires that a defendant demonstrate both that

his counsel’s performance was deficient and that counsel’s deficient performance

prejudiced him. 466 U.S. at 687. Review of counsel’s performance is “highly

deferential.” Id. at 689–91 (“[S]trategic choices made after thorough

investigation” are “virtually unchallengeable,” and “strategic choices made after

less than complete investigation” are reasonable if limited investigation is

supported by “reasonable professional judgments.”); Dows v. Wood, 211 F.3d 480,

487 (9th Cir. 2000) (Counsel’s tactical decisions at trial are “given great

deference.”). The Washington Supreme Court reasonably determined that

counsel’s performance was not deficient and that Lui was not prejudiced. The

court deferred to counsel’s consultation of an expert as well as his strategy of

cross-examining rather than presenting opposing expert testimony. The court also

found that Lui had failed to prove prejudice because the body of evidence against

him was strong, even without the scent-tracking evidence. The Washington

Supreme Court’s application of Strickland was not unreasonable.

Third, the Washington Supreme Court’s determination that Lui’s counsel

was not ineffective by his failure to object to improper detective testimony and

closing argument statements was not unreasonable. The court determined that

counsel’s failure to object to the detective’s improper testimony was not deficient

4 because the statements, which were elicited by counsel, reflected an apparent

strategy to discredit the detective and lay the foundation for counsel’s theory of the

case. Dows, 211 F.3d at 487. The Washington Supreme Court’s deference to

counsel’s trial strategy was not improper. The court also found that Lui was not

prejudiced by counsel’s failure to object to the prosecutor’s closing argument

because the improper statements were an isolated portion of an extensive closing

argument that focused on the core evidence in support of the state’s case against

Lui. The Washington Supreme Court did not unreasonably apply Strickland to

Lui’s claims of ineffective assistance on these grounds.

Finally, the Washington Supreme Court did not err in denying Lui an

evidentiary hearing on these claims. The Washington Supreme Court reasonably

considered and rejected Lui’s claims on the merits. See Sumner v. Mata, 449 U.S.

539, 546–47 (1981) (pre-AEDPA version of § 2254(d) requires state courts to have

considered and rejected claims on the merits, but the statute does not “specify any

procedural requirements.”); Lambert v. Blodgett, 393 F.3d 943, 965–66, 967 (9th

Cir. 2004) (The state court need only have “reached the merits of the petitioner’s

claim without dismissing it on procedural grounds.”).

AFFIRMED.

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