NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 15 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN GOMEZ, No. 20-15088

Petitioner-Appellant, D.C. No. 3:18-cv-03021-EMC

v.

MEMORANDUM*

SCOTT FRAUENHEIM, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted March 9, 2022 San Francisco, California

Before: S.R. THOMAS, McKEOWN, and GOULD, Circuit Judges.

Juan Gomez seeks review of a district court judgment denying his petition for

a writ of habeas corpus. We certified for appeal the question of whether Gomez’s

“trial counsel provided ineffective assistance by conceding guilt on all three counts

of oral copulation with a child.” We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We review de novo a district court’s denial of a habeas petition, see Lopez v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), including claims of

ineffective assistance of counsel, see Womack v. Del Papa, 497 F.3d 998, 1002 (9th

Cir. 2007). Where, as here, the district court was reviewing a state court ruling on

the merits of a federal claim, we review the state court’s ruling to determine whether

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

established Federal law,” or (2) “based on an unreasonable determination of facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

In his appellate briefing, Gomez argues that the California Court of Appeal

erred because it failed to apply the rule from United States v. Cronic, which holds

that a “presumption of prejudice is appropriate without inquiry into the actual

conduct of the trial” where there has been an effectively complete denial of counsel,

such as when “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” 466 U.S. 648, 659–60 (1984).

Yet Gomez failed to properly raise his Cronic claim prior to his appellate

briefing. His federal habeas petition raised only a claim under Strickland v.

Washington, 466 U.S. 668 (1984). “It is a well-established principle that in most

instances an appellant may not present arguments in the Court of Appeals that it did

not properly raise in the court below.” Rothman v. Hosp. Serv. of S. Cal., 510 F.2d

956, 960 (9th Cir. 1975). And while Gomez’s state court briefing (which was

included with his federal habeas petition) did cite Cronic once, this was a throwaway

2 citation to support a general point about the Sixth Amendment and not Cronic’s

presumption of prejudice. Cf. Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir.

2005) (“Exhaustion demands more than drive-by citation, detached from any

articulation of an underlying federal legal theory.”). The Supreme Court has made

clear that the “difference” between “the rule of Strickland and that of Cronic … is

not of degree but of kind,” Bell v. Cone, 535 U.S. 685, 697 (2002), so raising

Strickland is insufficient to properly raise Cronic.

Turning to Gomez’s Strickland claim, we conclude that he cannot overcome

the highly deferential standard of review. To prevail under Strickland, a petitioner

must show that (1) “counsel’s representation fell below an objective standard of

reasonableness” (i.e., deficiency), 466 U.S. at 688, and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different” (i.e., prejudice), id. at 694. Yet when we review a lower

court holding that there was no ineffective assistance of counsel, “[t]he pivotal

question is whether the state court’s application of the Strickland standard was

unreasonable. This is different from asking when defense counsel’s performance

fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

“[T]he question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. at 105.

3 The answer to this question is yes. The California Court of Appeal concluded

that Gomez’s appeal fails on the prejudice prong. It relied on a line of state cases

suggesting that a defense attorney may concede her client’s guilt on a lesser charge

as a tactical strategy to avoid a guilty verdict for the greater charge. The district

court held that such a conclusion was “not unreasonable.” We agree. Federal

precedent echoes the state cases cited by the Court of Appeal. See United States v.

Thomas, 417 F.3d 1053, 1058–59 (9th Cir. 2005); United States v. Bradford, 528

F.2d 899, 900 (9th Cir. 1975). Even in United States v. Swanson, on which Gomez

relies heavily, we “recognize[d] that in some cases a trial attorney may find it

advantageous to his client’s interests to concede certain elements of an offense or

his guilt of one of several charges.” 943 F.2d 1070, 1075–76 (9th Cir. 1991).

In light of our precedent, there is a “reasonable argument” that defense

counsel’s concessions were non-prejudicial and that counsel thus “satisfied

Strickland’s deferential standard” on appeal. Harrington, 562 U.S. at 105.

Therefore, Gomez’s ineffective assistance of counsel argument fails.

AFFIRMED.

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