Lionel E. Gentry v. Ernie Roe, Warden Attorney General of the State of California

dissenting from denial of rehearing en banc:

The panel granted a 28 U.S.C. § 2254 habeas petition on the ground that defense counsel’s closing argument fell below the Strickland 1 standard.

*893 The panel has given lip service to the statutory habeas standard but hasn’t followed it. The opinion gives inadequate deference both to the constitutional analysis of the Court of Appeal of the State of California and to the judgments of defense counsel about how best to argue for his client.

As Judge Silverman correctly pointed out in dissent, the law requires not only that counsel’s performance was deficient and that the deficiency was prejudicial, but also that the state court of appeal’s decision to the contrary was “objectively unreasonable,” all the while “indulg[ing] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 2 The majority declared the state court’s opinion was unreasonable, but made no attempt to show why. The only question we have jurisdiction to answer is whether the state court’s opinion was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the…

dissenting:

The sole question before us is whether the California Court of Appeal’s decision was an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Despite this, my colleagues in the majority say virtually nothing about the decision or reasoning of the California Court of Appeal. Rather, they analyze this case as if they were reviewing a direct appeal of a federal criminal trial, instead of the denial of habeas relief to a state prisoner under § 2254.

It makes a big difference. Federal ha-beas relief is not available simply because a federal court concludes “that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

The California Court of Appeal examined defense counsel’s closing argument. It pointed out that counsel “argued that he had never found a prosecutor who did not claim to know what had happened in a case, but urged the prosecutor was not present at the incident.” The court noted that counsel “commented on Williams’s…

Opinion by Judge FARRIS; Dissent by Judge SILVERMAN

ORDER

The opinion filed August 8, 2002, and amended August 30, 2002, is further amended as reflected in the attached revised opinion. The dissent filed August 8, 2002, is also amended as reflected in the attached revised dissent.

With these amendments, Judges Hug and Farris voted to deny the petition for panel rehearing; Judge Silverman voted to grant the petition. Judge Silverman voted to deny the petition for rehearing en banc and Judges Hug and Farris so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

320 F.3d 891 Lionel E. GENTRY, Petitioner-Appellant, v. Ernie ROE, Warden; Attorney General of the State Of California, Respondents-Appellees. No. 00-55691. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2002. Filed August 8, 2002. Amended August 30, 2002. Further Amended January 28, 2003. James H. Locklin, Deputy Federal Public Defender (argued), Los Angeles, CA, for the petitioner-appellant. Shawn McGahey Webb (argued), Deputy Attorney General of the State of California, for the respondents-appellees. Appeal from the United States District Court for the Central District of California Edward Rafeedie, District Judge, Presiding. D.C. No. CV-97-04867-ER-AN. Before: HUG, JR., FARRIS and SILVERMAN, Circuit Judges. 1 Opinion by Judge FARRIS; Dissent by Judge SILVERMAN ORDER 2 The opinion filed August 8, 2002, and amended August 30, 2002, is further amended as reflected in the attached revised opinion. The dissent filed August 8, 2002, is also amended as reflected in the attached revised dissent. 3 With these amendments, Judges Hug and Farris voted to deny the petition for panel rehearing; Judge Silverman voted to grant the petition. Judge Silverman voted…