FILED

NOT FOR PUBLICATION

JUN 15 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL E. MOCKOVAK, No. 21-35634

Petitioner-Appellant, D.C. No. 2:18-cv-00671-JLR

v.

MEMORANDUM*

RON HAYNES,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted June 7, 2022** Seattle, Washington

Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.

* 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Michael Mockovak appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253.

The Washington Court of Appeals’s determination that Mockovak’s trial

counsel did not render ineffective assistance of counsel by (a) failing to investigate

whether Mockovak’s history of childhood abuse rendered him more susceptible to

entrapment, and (b) failing to introduce such evidence at trial (i.e., a defense of

“learned helplessness”), was not an objectively unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984). Even assuming that the state

habeas court’s determination that trial counsel’s performance was not deficient was

an unreasonable application of Wiggins v. Smith, 539 U.S. 510 (2003), and Sears v.

Upton, 561 U.S. 945 (2010),1 the state habeas court could reasonably conclude that

any deficiency by Mockovak’s counsel was not prejudicial, given the “extensive

evidence that Mockovak initiated discussions with Kultin about hiring Russian

hitmen,” and Mockovak’s response (“That sounds good”) when Kultin told him

that everything was in place for King’s murder. See Staten v. Davis, 962 F.3d 487,

495, 497 (9th Cir. 2020), cert. denied, 141 S. Ct. 1502 (2021).

1 Because we make this assumption, we do not reach Mockovak’s additional arguments regarding the deficiency prong of the Strickland analysis. 2 We reject Mockovak’s argument that the state habeas court conflated

Strickland’s deficiency and prejudice prongs and failed to consider the totality of

the evidence in its prejudice analysis. The court separated its prejudice analysis

from its deficiency analysis, considered the learned helplessness evidence that

Mockovak claimed should have been presented, and determined that Mockovak

did not show a reasonable probability that such evidence would have changed the

outcome of his trial.

AFFIRMED.

3