FILED

NOT FOR PUBLICATION

FEB 16 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN ALAN O’BRIEN, No. 20-16970

Petitioner-Appellant, D.C. No. 2:10-cv-02472-MCE-CKD v.

LELAND MCEWEN, Warden, Calipatria MEMORANDUM* State Prison,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted February 7, 2023 San Francisco, California

Before: BYBEE and BUMATAY, Circuit Judges, and BENNETT,** District Judge.

Sean O’Brien was convicted of first degree murder in California. He

commenced this federal habeas action in 2010 under the Antiterrorism and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Effective Death Penalty Act of 1996 (AEDPA). The district court denied his

petition in 2014, ruling that California’s denial of O’Brien’s ineffective assistance

of counsel claims was reasonable and merited deference under AEDPA. In 2015,

we reversed the district court’s judgement in part, finding that the state court’s

application of Strickland was objectively unreasonable because O’Brien

established a colorable claim of relief and was never afforded a state or federal

evidentiary hearing on the claim. Accordingly, we remanded for an evidentiary

hearing with respect to several sub-claims of ineffective assistance of counsel. The

district court held an evidentiary hearing and again denied O’Brien’s petition.

O’Brien appeals, alleging that counsel was ineffective by failing to: (1)

introduce evidence from Robert Gilmore that co-participant William Wellman was

at the gun shop at 10:00 a.m.; (2) introduce Edward Winslow’s testimony that

O’Brien called the autoshop at 10:49 a.m.; (3) introduce Wellman’s statements of

O’Brien’s phone usage and driving route on the day of the murder; (4) impeach

Wellman on his changed time line; (5) introduce corroborating evidence that

O’Brien was home at 11:14 a.m.; and (6) introduce evidence of Mike Carrick’s

ATM withdrawals on the days preceding the murder.

We have jurisdiction under 28 U.S.C. § 1291 and § 2253, and we review the

district court’s denial of habeas relief de novo. Eslaminia v. White, 136 F.3d 1234,

2 1236 (9th Cir. 1998). We review the district court’s findings of fact for clear

error. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).

To show ineffective assistance of counsel, O’Brien must demonstrate that

counsel’s performance fell below an objective standard of reasonableness and that

he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687–92

(1984). Under the performance prong, we ask whether counsel’s decisions were

reasonable from his perspective at the time, starting from the “strong presumption

that counsel’s conduct falls within the wide range of reasonable conduct.” Id. at

689. O’Brien’s “highly demanding” task is to show that the only objective

explanation for his counsel’s performance is “gross incompetence.” Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986). Under the prejudice prong, O’Brien must

demonstrate a “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at

694.

We affirm the district court’s ruling. O’Brien has failed to satisfy either

Strickland element.

Counsel’s performance was objectively reasonable. He adequately

investigated potential witnesses and formed an alibi defense with the information

that was available. For example, counsel’s decision to call Carl Christofferson

3 instead of Gilmore was objectively reasonable because Christofferson worked at

the gun shop the day of the murder, and Gilmore’s testimony did not corroborate

O’Brien’s alibi defense. Counsel’s decision not to call Winslow as a witness was

also reasonable because he assessed that Winslow would not be a credible witness,

and Winslow could not pinpoint the time of O’Brien’s phone call. Counsel

followed through on his strategy to show Wellman was lying when he cross-

examined Wellman about his plea bargain and argued during closing that the plea

agreement gave Wellman a motive to lie.

Neither can O’Brien demonstrate prejudice. The evidence adduced at the

evidentiary hearing, had counsel introduced it at trial, would not have likely altered

the verdict. The evidence against O’Brien was significant. O’Brien borrowed and

later returned a shotgun with a missing shotgun shell that matched the type that

killed victim Kyle Smelser. Two co-participants identified O’Brien as the shooter.

O’Brien told his friend he had killed someone for a “wad of cash.”

For example, O’Brien was not prejudiced by his attorney’s failure to

introduce Carrick’s phone record or ask Carrick about the 11:14 a.m. phone call.

Carrick’s phone record merely indicated an incoming call from an unknown phone

number. O’Brien was not prejudiced by counsel’s failure to reject Carrick’s

4 blanket assertion of his privilege against self-incrimination because Carrick could

assert his privilege in response to questions about the call.

Nor was O’Brien prejudiced by counsel’s omission of Wellman’s statements

in Detective Hoagland’s report, which related to O’Brien’s phone usage and

Wellman’s travel route. Both statements fit well within the prosecution’s case at

trial. Lastly, O’Brien was not prejudiced by counsel’s decision not to introduce

evidence that Carrick made two ATM withdrawals on the days preceding the

crime. How Carrick obtained money has little tendency to prove how O’Brien

obtained money. There is no likelihood such evidence would have changed the

outcome of trial.

O’Brien has thus failed to show that he received ineffective assistance of

counsel.

AFFIRMED.

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