NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT E. JAMES, No. 22-35041

Petitioner-Appellant, D.C. No. 3:16-cv-06063-RJB

v.

MEMORANDUM*

ERIC JACKSON,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Argued and Submitted February 16, 2023 Seattle, Washington

Before: PAEZ and VANDYKE, Circuit Judges, and BENITEZ,** District Judge.

Robert James appeals the district court’s order denying his petition for writ of

habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a). Because

his petition fails to show that the underlying state court decisions unreasonably

applied clearly established federal law as required 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 Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. Effective Death Penalty Act of 1996 (AEDPA), we affirm. 1

In 2013, James was charged in the State of Washington with raping an

inebriated woman (S.C.). Before and at trial, James’s counsel misinterpreted the

forensic data as demonstrating that some of the DNA recovered from S.C. must have

come from an unknown third party other than James. In fact, all of the male DNA

found on S.C. was consistent with James. The jury found James guilty of second

degree rape and sentenced him to “102 months to Life” in prison.

James appealed his conviction to the Washington Court of Appeals. As

relevant here, James argued that because his counsel failed to investigate the DNA

test, he “did not provide [James] the correct information which would have enabled

[him] to accurately [gauge] the strengthes [sic] and weakness[es] of [his] case.” The

court affirmed. James then filed a personal restraint petition, arguing that his

counsel’s error “affected [his] decision to refuse [a] plea deal offered by the state.”

The court rejected James’s petition for, inter alia, not “establish[ing] a prima facie

case of actual prejudice.”

Washington’s Supreme Court remanded to the appeals court to reconsider

“James’s claim that defense counsel was ineffective in misinterpreting the DNA

1 James’s Unopposed Motion to Supplement Record on Appeal (Docket Entry No. 11) is granted. James’s implied “motion to expand the COA” to include uncertified issues is denied. Ninth Cir. R. 22-1(e).

2 report.” On remand, the appeals court held that “[a]lthough James has made a prima

facie showing that defense counsel performed deficiently … he has failed to make a

prima facie showing that he suffered prejudice as a result.” “[F]atal to James’s

ineffective assistance claim” was that he did not “assert that he would have accepted

the State’s plea offer absent defense counsel’s deficient performance.”

Washington’s Supreme Court denied review, noting that the lower court’s decision

was consistent with clearly established federal law.

James then filed this federal habeas petition. The district court denied relief,

adopting the magistrate judge’s recommendation finding “that [James] has not

demonstrated that the state court’s application of Strickland was unreasonable.” See

Strickland v. Washington, 466 U.S. 668 (1984). The court concluded that although

James “suggested that defense counsel’s misrepresentation of the DNA report may

have influenced ‘his decision to accept or reject a plea offer.…’ the court cannot say

that it was unreasonable for the state court to have determined that [James] could not

establish that but for counsel’s misstatement regarding the strength of the DNA

evidence, there was a reasonable probability that [he] would have accepted a plea

deal.”

A federal court may grant habeas relief for claimed constitutional violations

under AEDPA only if the underlying state court adjudication “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

3 Federal law, as determined by the Supreme Court of the United States….” 28 U.S.C.

§ 2254(d)(1).

At issue here is Strickland’s two-part test for making an ineffective assistance

of counsel claim: “First, the defendant must show that counsel’s performance was

deficient.… Second, the defendant must show that the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687. To demonstrate prejudice

when ineffective assistance results in a rejection of a plea offer, a defendant must

show that “but for the ineffective advice of counsel there is a reasonable probability

that the plea offer would have been presented to the court (i.e., that the defendant

would have accepted the plea….)” Lafler v. Cooper, 566 U.S. 156, 164 (2012).

The state courts and the district court are correct: James failed to argue and

support the required showing of prejudice under Strickland. They reviewed the

record for any statement that James’s decisions were not only “affected” or

“impacted” in some general sense, but were in fact changed or determined by his

counsel’s error. Absent a showing of such prejudice, it was reasonable for the state

courts to conclude that James failed to satisfy Strickland’s prejudice requirement.

See 28 U.S.C. § 2254(d)(1).

AFFIRMED.2

2 James’s request for an evidentiary hearing to further develop the record is denied as moot.

4