                                                                              FILED
                           NOT FOR PUBLICATION
                                                                                 JUN 14 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


DANNY EMILIO GARCIA,                             No.   16-55550

              Petitioner-Appellant,              D.C. No. 2:14-cv-1840-JFW-JC

 v.

DEBBIE ASUNCION, Warden,                         MEMORANDUM*

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                     Argued and Submitted February 15, 2018
                              Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and GLEASON,** District Judge.

      Danny Emilio Garcia appeals the district court’s denial of his habeas petition

in which he asserted that he had received ineffective assistance of counsel in

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **      The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
violation of the Sixth Amendment during the California state court jury trial in

which he was convicted of second degree murder. On direct appeal, the Supreme

Court of California summarily denied review of that claim.

      On appeal of the denial of a 28 U.S.C. § 2254 habeas petition, the district

court’s findings of fact are reviewed for clear error; legal conclusions are reviewed

de novo. Kemp v. Ryan, 638 F.3d 1245, 1254 (9th Cir. 2011) (citations omitted).

Here, “[w]here a state court’s decision is unaccompanied by an explanation, the

habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98

(2011).

      A successful claim of ineffective assistance of counsel has two components.

First, “the defendant must show that counsel’s performance was deficient.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). On review, a court applies “a

‘strong presumption’ that counsel’s representation was within the ‘wide range’ of

reasonable professional assistance.” Richter, 562 U.S. at 104 (citing Strickland,

466 U.S. at 689). Second, “the defendant must show that the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687. “Failure to meet either prong




                                          2
is fatal to a claim.”1 Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013).

      Garcia asserts that trial counsel was ineffective for “fail[ing] to timely and

properly object to the admission of the irrelevant and highly prejudicial statement

of Anthony Ramirez.” The statement included Ramirez’s assertions that he was

afraid of Garcia and that Garcia was not remorseful for killing the victim.

      Apart from the state trial court record, Garcia offers no evidence to support

his claim. Successful ineffective assistance claims are generally accompanied by

evidence in some form, often a declaration by defense counsel or an explanation of

why a declaration was unavailable. See Gentry, 705 F.3d at 900 (upholding state

court’s denial of ineffective assistance claim where insufficient relevant evidence

was offered to support the claim). However, “the right to effective assistance of

counsel . . . may in a particular case be violated by even an isolated error of

counsel if that error is sufficiently egregious and prejudicial.” Murray v. Carrier,

477 U.S. 478, 496 (1986). Garcia maintains that “the instant case presents one of

those relatively rare situations where trial counsel’s omission is apparent from the

record and no further elucidation from counsel is necessary.”

      Before Ramirez’s statement was played to the jury, Garcia’s trial counsel

      1
        The district court adopted the magistrate judge’s recommendation, which
assumed without deciding that the representation was deficient and denied the
petition based on the prejudice prong.

                                           3
objected to the statement’s admission for lack of foundation and lack of relevance.

Trial counsel also asserted that if the court were to admit the statement, then it

should admit the full recording, including a separate portion the government had

proposed to redact.2 However, the trial court overruled these objections and

allowed the prosecution’s redacted version of the recording to be played to the

jury.3 After the challenged statement was played to the jury, trial counsel once

again objected. The court excused the jury, and trial counsel argued that Ramirez’s

statement was both speculative and irrelevant. The court denied the objection.

However, the court decided to allow the admission of the full recording, including


      2
        Counsel also stated, “I objected to this transcript and this thing being
entered into it’s the same stuff going on before where people were—an objection
was made. There was an opinion given by this gentleman. The Court sustained it
and now he sneaks it in by a transcript.” This comment appears to form the basis
for the government’s assertion at oral argument to this Court that trial counsel
made a pretrial objection to Ramirez’s statement that the trial court had granted.
This assertion was reiterated in the letter filed by the government in response to our
request at the conclusion of oral argument. However, the state court record is
inconclusive as to the precise nature of the trial court’s pretrial ruling.
Nevertheless, if that specific pretrial objection had been made, it would only
bolster our conclusion that trial counsel’s performance was not deficient.

      3
        The trial court initially rejected counsel’s argument that the court must
allow the entire unredacted recording to be played. The court stated this was “not a
proper objection” and allowed the redacted version to be played. However, the
court told trial counsel “I am going to hear you out” and stated that it would review
the unredacted transcript in the interim to determine whether to admit the
previously redacted portion.

                                           4
the portion that the government had proposed to redact.

      On appeal to this court, Garcia argues trial counsel should have timely

objected on the basis of unfair prejudice, presumably under Cal. Evid. Code § 352.

Even if trial counsel erred in failing to successfully object to the admission of the

statement, this error was not sufficiently egregious to amount to ineffective

assistance of counsel. Although trial counsel did not make an express objection on

the basis of unfair prejudice, it is undisputed that trial counsel made repeated

objections in an attempt to prevent the admission of the statement. Trial counsel

also made efforts to mitigate the potential effect of the statement by successfully

urging the court to admit the entire recording, including the portion the prosecution

sought to redact. Given that “courts must judge the reasonableness of counsel’s

challenged conduct . . . as of the time of counsel’s conduct . . . and judicial scrutiny

of counsel’s performance must be highly deferential,” Garcia has not demonstrated

that trial counsel’s performance at trial fell outside the wide range of reasonable

professional assistance. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal

quotation marks and alterations omitted).

      In addition, it is far from clear that trial counsel’s course of conduct was not

strategic. Trial counsel’s request that the court play the entire recording appears to

have been a calculated effort to have the jury hear a portion of Ramirez’s interview


                                            5
that the prosecution did not yet want to present to the jury. 4 While trial counsel’s

intention is not easily discerned from the record, his efforts seem to reflect a

potentially valid strategy. See Karis v. Calderon, 283 F.3d 1117, 1130 (9th Cir.

2002) (holding counsel not ineffective for failing to object to admission of witness

testimony that conflicted with defendant’s statements, when counsel believed

testimony also served beneficial purpose); Strickland, 466 U.S. at 689 (“[T]he

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” (internal quotation

marks omitted)).

      For the foregoing reasons, we do not find that “counsel’s representation fell

below an objective standard of reasonableness” or that counsel “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” Strickland, 466 U.S. at 687–88. Therefore, we hold that Garcia has

failed to show that “there was no reasonable basis for the state court to deny

relief.” Richter, 562 U.S. at 98. Accordingly, we affirm the district court without




      4
        This appears to have been Ramirez’s statement that money and drugs were
the sources of the conflict between Garcia and the victim.

                                           6
    reaching Strickland’s prejudice prong.5

          AFFIRMED.




1         5
             See Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir. 1995) (“We may affirm
2   on any ground supported by the record, even if it differs from the rationale of the
3   district court.”).

                                              7
