1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL AIRO, Case No. 3:23-cv-01373-JSC

8 Plaintiff,

ORDER DENYING PETITION FOR

9 v. WRIT OF HABEAS CORPUS

10 MARTIN GAMBOA, Re: Dkt. No. 14 Defendant. 11

12 13 INTRODUCTION 14 Petitioner, a prisoner of the State of California, filed a petition for a writ of habeas corpus 15 under 28 U.S.C. § 2254 on the grounds of ineffective assistance of counsel. (Dkt. 1 at 11.) 16 Respondent answered the petition (Dkt. 11.) and petitioner filed a traverse. (Dkt. 13.) For the 17 reasons set forth below, the petition is DENIED. 18 BACKGROUND 19 In 2018, a jury convicted Petitioner of continuous sexual abuse of a child under fourteen 20 (Cal. Penal Code § 288.5(a)) and three counts of forcible lewd acts on a child (Cal. Penal Code 21 § 288(b)(1)). (Dkt. 1 at 5.) Petitioner was sentenced to fifteen years in prison. (Dkt. 11 at 5.) 22 Petitioner appealed. (Dkt. 11 at 15.) The California Court of Appeals found trial counsel’s 23 performance to be “deficient,” but affirmed Petitioner’s judgment after concluding the deficiency 24 was not “prejudicial.” (Id. at 19.) The California Supreme Court denied review. (Id. at 5.) 25 DISCUSSION 26 I. STANDARD OF REVIEW 27 This Court may entertain a petition “for a writ of habeas corpus in behalf of a person in 1 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 2 The writ may “not be granted with respect to any claim that was adjudicated on the merits 3 in State court” unless the State court’s adjudication: “(1) resulted in a decision that was contrary 4 to, or involved an unreasonable application of, clearly established Federal law, as determined by 5 the Supreme Court of the United States; or (2) resulted in a decision that was based on an 6 unreasonable determination of the facts in light of the evidence presented in the State court 7 proceeding.” 28 U.S.C. § 2254(d). A federal habeas court making the “unreasonable application” 8 inquiry should ask whether the state court’s application of clearly established federal law was 9 “objectively unreasonable.” Williams v. Taylor, 592 U.S. 362,409. “[A] federal habeas court may 10 overturn a state court’s application of federal law only if it is so erroneous that there is no 11 possibility fairminded jurists could disagree that the state court's decision conflicts with [the 12 Supreme Court’s] precedents.” Nevada v. Jackson, 569 U.S. 505, 508 (2013) (cleaned up). 13 II. DISCUSSION 14 Petitioner seeks federal habeas relief on the grounds he was denied his Sixth Amendment 15 right to effective assistance of counsel. An ineffective assistance of counsel claim requires 16 Petitioner establish (1) “counsel's representation fell below an objective standard of 17 reasonableness;” and (2) the “deficiencies in counsel’s performance” were “prejudicial to the 18 defense.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The prejudice prong requires 19 Petitioner show “there is a reasonable probability that, but for counsel’s unprofessional errors, the 20 result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a 21 probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different 22 result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). 23 “Establishing that a state court’s application of Strickland was unreasonable” in the context 24 of federal habeas review is “difficult” because “[t]he standards created by Strickland and 25 § 2254(d) are both highly deferential”—making this court’s review “doubly” deferential. 26 Harrington v. Richter, 562 U.S. 86, 105 (2011) (cleaned up). 27 Petitioner alleges trial counsel was ineffective because of counsel’s decision to call an 1 performance was prejudicial. (Id. at 18). Respondent has conceded Petitioner’s counsel was 2 deficient. (Dkt. 11 at 22). Thus, the Court turns its attention to the prejudice prong of the 3 ineffective assistance of counsel claim. 4 Given the highly deferential standard of review, Petitioner has failed to establish the 5 California Appellate Court’s decision was unreasonable. The California state court found “no 6 reasonable likelihood that the result would have been different if only defendant’s trial counsel 7 had not presented” the expert testimony. (Id. at 20). The court noted the victim’s testimony “was 8 clear, detailed, and unequivocal.” (Id. at 20). Moreover, “the defense offered no explanation for 9 why [the victim] would have come forward years later and reported abuse that had not actually 10 occurred.” (Id.) 11 Petitioner argues the California state court decision was unreasonable because his “trial 12 counsel put on expert testimony that served to prejudicially support the prosecution’s position on a 13 crucial, disputed point.” (Dkt. 13 at 4.) However, Petitioner fails to explain how this testimony 14 was prejudicial according to the Strickland standard. While the expert’s testimony did not help 15 Petitioner’s case, Petitioner has not established how without that testimony there is a reasonable 16 probability of a different outcome in his trial. Indeed, Petitioner fails to address any of the 17 incriminating evidence the prosecution presented at trial—evidence that overwhelmingly 18 corroborated the victim’s story. Both the victim’s mother and sister confirmed key aspects of the 19 victim’s account of abuse. (Dkt. 11 at 23). The victim’s college therapist indicated the victim had 20 told her about the abuse before the victim decided to report that abuse to law enforcement. (Id. at 21 24). Furthermore, Petitioner’s own letters to the victim support the victim’s version of events. 22 (Id.). Given the amount of evidence supporting the victim’s testimony, the California state court’s 23 determination that Petitioner did not suffer prejudice from his trial counsel’s performance was not 24 unreasonable. 25 III. CERTIFICATE OF APPEALABILITY 26 Petitioner has failed to show “reasonable jurists would find the district court’s assessment 27 of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 1 CONCLUSION 2 For the above reasons, the petition for a writ of habeas corpus is DISMISSED, and a 3 certificate of appealability is DENIED. 4 IT IS SO ORDERED. 5 Dated: August 29, 2023 6 7 ne

AACQWELINE SCOTT CORLEY

8 United States District Judge 9 10 11 12

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