NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARLA RAY JONES, No. 20-55407

Petitioner-Appellant, D.C. No. 2:15-cv-01376-MWF-SHK v.

D. K. JOHNSON, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted July 7, 2021 Pasadena, California

Before: D.M. FISHER,** WATFORD, and BUMATAY, Circuit Judges.

In 2013, Darla Jones was convicted in California state court of assault with a

firearm and making criminal threats. Later it came to light that, during Jones’ trial,

her defense attorney had been under prosecution by the Los Angeles County

District Attorney—the same office that prosecuted Jones. The District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. denied Jones’ petition for a writ of habeas corpus and granted her a certificate of

appealability on one claim: that Jones’ lawyer was operating under a conflict of

interest by representing her while he was being prosecuted by the same DA’s

office. As to this claim, we affirm. We decline to expand the certificate of

appealability to include two additional claims Jones raises.

1. In her state-court and District Court habeas petitions, and before this

Court, Jones has argued that her lawyer’s conflict of interest violated her Sixth

Amendment right to the effective assistance of counsel. She has contended that, to

curry favor with the prosecutor, her lawyer pulled his punches when examining the

prosecutor’s investigator, who was called as a defense witness.

Usually, a defendant demonstrates ineffective assistance by showing that

“counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

However, “a defendant who shows that a conflict of interest actually affected the

adequacy of [her] representation need not demonstrate prejudice” because “[t]he

conflict itself demonstrate[s] a denial of the right to have the effective assistance of

counsel.” Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (internal quotation marks

omitted). Such a defendant need only show that the conflict “adversely affected

[her] lawyer’s performance.” Id. at 348; see also Strickland, 466 U.S. at 692

(leaving intact Sullivan’s presumption-of-prejudice standard).

2 The California Court of Appeal stated that Jones must show that

“(1) counsel labored under an actual conflict of interest that adversely affected

counsel’s performance, and (2) absent counsel’s deficiencies arising from the

conflict, it is reasonably probable the result of the proceeding would have been

different.” In re Jones, No. B262848, 2016 WL 1105020, at *2 (Cal. Ct. App. Mar.

22, 2016) (citation omitted). This standard does not correctly articulate either

Sullivan or Strickland—rather, it is an amalgamation of both. The Court of Appeal

held that Jones did not carry her burden because she did not show prejudice.

Before us, Jones argues that: we should review her claim de novo because

the Court of Appeal applied the wrong standard; the more lenient Sullivan standard

applies; and her counsel’s conflict of interest adversely affected his performance.

See Mickens v. Taylor, 535 U.S. 162, 176 (2002) (explaining that Sullivan is more

lenient because it is an “exception[] from the ordinary requirements of Strickland”

that applies “where Strickland . . . is evidently inadequate to assure vindication of

the defendant’s Sixth Amendment right to counsel”). We assume, without

deciding, that Jones is correct about our standard of review (de novo) and the

applicable substantive standard (Sullivan). Nevertheless, the District Court did not

err in denying Jones’ claim because the conflict of interest did not adversely affect

her counsel’s performance. See Rowland v. Chappell, 876 F.3d 1174, 1193 (9th

Cir. 2017) (not deciding between Sullivan and Strickland because, even under

3 Sullivan, counsel’s performance was not adversely affected).

Jones argues that her counsel soft-pedaled his questions to the investigator

and lost the opportunity to argue that the victims changed their story about the date

of the assault only after the prosecutor approached them. That argument, she says,

would have caused the jurors to view the victims’ entire testimony with suspicion.

The problem with Jones’ contention is that counsel made precisely the argument

she describes. He vigorously advocated to call the investigator as a defense witness

(and, during the same sidebar, sharply criticized the prosecutor). When the

prosecutor argued that defense counsel’s ability to argue from the evidence should

be limited, counsel pushed back and got a favorable ruling: that he would be

permitted to point out the discrepancy in the witnesses’ testimony.

In his closing argument, defense counsel attacked the witnesses’ credibility,

saying that “their story” was “absolutely ludicrous.” He argued that the victims

“only change the date after they’re questioned about it and . . . even then, it takes

them a long time.” He told the jury that “there is just no way, just on the date

alone, you could find this case was proven beyond a reasonable doubt.” On this

basis, he concluded, “this [crime] just didn’t happen.” Given that counsel

strenuously advanced the very argument that Jones now says he sacrificed, his

performance was not adversely affected by the conflict of interest.

2. Jones argues that the certificate of appealability should be expanded to

4 include the issue of whether the prosecutor violated her due process rights by

failing to correct evidence. See Napue v. Illinois, 360 U.S. 264, 269 (1959) (state

violates due process by obtaining a conviction using false evidence). A certificate

of appealability is granted if the petitioner makes “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which means that “jurists

of reason could disagree with the district court’s resolution of his [case] or . . .

conclude the issues presented . . . deserve encouragement to proceed further,”

Mitchell v. United States, 971 F.3d 1081, 1083 (9th Cir. 2020) (per curiam)

(alteration in original) (citation omitted).

Jones argues that Darryl Israel testified falsely that he contacted the

prosecutor about the date being incorrect before the prosecutor contacted him. To

begin with, this line of questioning was confusing due to defense counsel’s

numerous compound questions. And, as described above, the jury later heard the

investigator’s testimony that the prosecutor asked Israel about the date first.

Israel’s testimony was more confused or confusing than false. We agree with the

California Court of Appeal that “[a]t worst, the purported discrepancy in Israel’s

testimony reflected negatively upon his credibility.” People v. Jones, No.

B251324, 2014 WL 6657247, at *5 (Cal. Ct. App. Nov. 24, 2014).

Jones next argues that Terrence Hite testified misleadingly that he (Hite) had

been trying to convince Israel “the whole time” that the date was incorrect. Jones

5 does not explain what was misleading about this statement. Defense counsel did

not ask—so Hite did not explain—what time period he meant by “the whole time.”

Moreover, defense counsel’s question (“Are you sure [the prosecutor] didn’t call

you and tell you that the date was wrong?”) assumed the prosecutor told Hite the

date was wrong, which the prosecutor denied doing.

“[N]o reasonable jurist would agree,” Mitchell, 971 F.3d at 1084 n.4, that the

prosecutor had a responsibility “to correct the record to reflect the true facts,”

Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). We do not grant a certificate of

appealability on this issue.

3. Jones’ second uncertified issue is that, aside from any conflict of interest,

her counsel was ineffective. Here, rather than the Sullivan standard discussed

above, the more demanding Strickland standard applies: Jones must show both

deficient performance and prejudice. Strickland, 466 U.S. at 687. We have

explained that counsel’s questioning of the investigator did not show an “adverse

effect” on his performance under the more lenient Sullivan standard—so

undoubtedly, there was no prejudice under the Strickland standard. Defense

counsel was able to argue to the jury that the witnesses, after talking to the

prosecutor in December 2012, changed their position regarding when the assault

took place.

“[N]o reasonable jurist would agree,” Mitchell, 971 F.3d at 1084 n.4, that

6 counsel was ineffective. We do not grant a certificate of appealability on this issue.

AFFIRMED.

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