NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 22 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DON ARTHUR MOORE, No. 22-35984

Petitioner-Appellant, D.C. No. 2:21-cv-00217-SAB

v.

MEMORANDUM*

RON HAYNES, Superintendent of Stafford Creek Corrections Center,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, Chief Judge, Presiding

Argued and Submitted September 11, 2023 Seattle, Washington

Before: HAWKINS, W. FLETCHER, and R. NELSON, Circuit Judges.

Petitioner-Appellant Don Moore appeals the denial of his 28 U.S.C. § 2254

petition challenging his Washington state conviction for first-degree murder. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On state post-conviction review, the Washington state courts determined that

Moore’s trial counsel rendered ineffective assistance by failing to investigate his

history of mental illness, diagnosis of a 100% disability for combat-related PTSD,

brain abnormalities, and combined effect of complex medications he was taking at

the time of the homicide. The state court granted Moore’s petition as to his

sentence, finding that he was prejudiced at sentencing because he was unable to

request a downward sentence exception due to his mental health issues, and denied

the petition as to his underlying conviction.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which

governs this petition, we may grant a claim adjudicated on the merits only if the

state court's decision was (1) “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” or (2) “based on an unreasonable determination of the facts in light

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

Moore contends he received ineffective assistance of counsel because

evidence of his mental health could have supported a defense of diminished

capacity to form the requisite intent for premeditated murder and, in the alternative,

could have supported conviction of lesser-included offenses of second-degree

murder or manslaughter. An ineffective assistance claim requires Moore to prove:

(1) counsel's representation “fell below an objective standard of reasonableness,”

2 and (2) there is a reasonable probability that “but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). The standards created by Strickland

and AEDPA are both highly deferential, and when applied in tandem the review is

doubly deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011).

Rendering the “last reasoned [state court] decision,” the Washington

Supreme Court reasonably applied clearly established law in denying Moore relief

as to his conviction. See Tamplin v. Muniz, 894 F.3d 1076, 1086 (9th Cir. 2018).

Even acknowledging trial counsel’s deficient performance, it found that Moore

failed to show prejudice. See Strickland, 466 U.S. at 700. Although some record

evidence supports Moore’s diminishing mental health around the time of the

homicide—including his medical records demonstrating PTSD and brain disease,

cumulative effects resulting from medications, and his belief he was entitled to

conduct a citizen’s arrest as a “sheriff”—it was reasonable for the state court to find

no substantial likelihood of a different result given the strength of the evidence for

premeditation. Instead, the Washington Supreme Court considered Moore’s

additional evidence of two expert reports and found that neither supported a defense

of diminished capacity. See State v. Gough, 768 P.3d 1028, 1030 (Wash. App. Ct.

1989). As such, we cannot disturb the state court’s determination of its own

diminished capacity standard. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

3 (“[A] state court's interpretation of state law . . . binds a federal court sitting in

habeas corpus.”) (citation omitted).

Mental impairment may have affected Moore in seeking out his victim, but

record evidence also contradicts Moore’s theory of the actual shooting. Physical

evidence shows Moore shot the victim from some distance (while the victim was

seated), and later stabbed him to make it appear as though there had been a close-

up struggle and that Moore manipulated the scene to support his story of a close

altercation. Thus, the state court’s determination was not an unreasonable

application of the facts under § 2254(d) based on the strength of the evidence for

premeditation.

Accordingly, we cannot say that the state court's conclusion “was so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Richter, 562

U.S. at 103.

AFFIRMED.

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