NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA CONKLIN, No. 19-15310

Petitioner-Appellant, D.C. No. 4:16-cv-02860-JSW

v.

MEMORANDUM*

MOLLY HILL, Acting Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted June 18, 2021** San Francisco, California

Before: M. SMITH and VANDYKE, Circuit Judges, and GORDON,*** District Judge.

Petitioner Patricia Conklin (Petitioner) appeals the district court’s denial of

her federal habeas petition. Because the parties are familiar with the facts, we do not

* 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 Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation. recount them here, except as necessary to provide context to our ruling. We have

jurisdiction under 28 U.S.C. §§ 2253 and 1291. We review de novo a district court’s

denial of a habeas petition. Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018).

Petitioner contends that her trial counsel was ineffective by failing to object

to the prosecutor’s motion to redact medical records that were admitted into

evidence. The redactions excluded from evidence certain exculpatory statements that

Petitioner’s mother, Margarita Zelada (Zelada), made to medical staff indicating that

an accidental fall—rather than a push by Petitioner—caused Zelada’s injury. The

California Court of Appeal considered and denied this claim on direct appeal. The

district court also denied this claim in Petitioner’s first amended federal habeas

petition and entered judgment. We issued a certificate of appealability as to “whether

trial counsel rendered ineffective assistance by failing to object to the prosecutor’s

motion to redact medical records admitted into evidence.”

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs

our review. See Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under AEDPA,

we cannot grant habeas relief unless the state court proceedings resulted in a decision

that was (1) “contrary to, or involved an unreasonable application of, clearly

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

or (2) “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 As the California Court of Appeal recognized, to prevail on a claim of

ineffective assistance of counsel, Petitioner must show both that counsel’s

performance was deficient and that the deficient performance prejudiced her

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient

performance, Petitioner must demonstrate that counsel’s representation fell below

an objective standard of reasonableness under prevailing professional norms. Id. at

688. To prove counsel’s performance was prejudicial, Petitioner must demonstrate

a “reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

Under AEDPA, however, “[t]he pivotal question is whether the state court’s

application of the Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below Strickland’s standard.”

Harrington v. Richter, 562 U.S. 86, 101 (2011). “For purposes of § 2254(d)(1), an

unreasonable application of federal law is different from an incorrect application of

federal law. A state court must be granted a deference and latitude that are not in

operation when the case involves review under the Strickland standard itself.” Id.

(internal quotations and citations omitted). In this regard, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

3 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. The California Court of Appeal reasonably concluded that trial counsel’s

failure to object was an acceptable tactical decision because admitting evidence that

Zelada slipped would have contradicted and undermined the defense theory of the

case. While fair-minded jurists could argue for a different defense theory with the

benefit of hindsight, trial counsel raised a defense theory of necessity that contended

the stove malfunctioned and Petitioner pushed her mother out of the way to protect

her from a fire coming from the stove. As the California Court of Appeal reasonably

determined, “[t]rial counsel could have made a reasonable tactical decision not to

object to the exclusion of Zelada’s statement to doctors that she had accidentally

slipped and fallen, since those statements were inconsistent with defendant’s out-of-

court statements regarding the circumstances of the fall that were admitted into

evidence . . . [and] would have undermined, rather than supported, the defense theory

of the case.” In light of the evidence and defense presented at trial, Petitioner fails

to show that this conclusion was unreasonable or an unreasonable application of

Strickland’s first prong. See id.

2. The California Court of Appeal also reasonably determined, even assuming

deficient performance, Petitioner was not prejudiced by counsel’s failure to object

to the redacted statements because there was no “reasonable” probability the

4 outcome of the trial would have been different in light of the strong evidence in the

record, including Petitioner’s own admissions, that Petitioner pushed Zelada down.

See id. at 112 (“The likelihood of a different result must be substantial, not just

conceivable.” (citations omitted)). Petitioner fails to show that this conclusion was

unreasonable or an unreasonable application of Strickland’s second prong.

Petitioner’s reliance on Griffin v. Harrington, 727 F.3d 940 (9th Cir. 2013) is

misplaced. In Griffin, no evidence supported trial counsel’s decision not to raise a

timely objection, which allowed admission of the only inculpatory evidence against

the defendant. Id. at 945–48. Here, however, significant evidence supported trial

counsel’s tactical decision to raise the defense of necessity and corroborated

Zelada’s statements that Petitioner pushed her down. Zelada’s numerous statements

to law enforcement and medical personnel that her daughter pushed her down, as

well as Petitioner’s own statements and actions at the scene and afterwards,

supported the necessity defense and the California Court of Appeal’s determination

that defense counsel’s failure to object was not prejudicial. Accordingly, the

California Court of Appeal reasonably determined that even if trial counsel was

ineffective, that error was not prejudicial.

AFFIRMED.

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