                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 21 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LONNIE JAMES SHOULDERS,                          No. 10-16814

              Petitioner - Appellant,            D.C. No. 2:07-cv-01763-MCE-
                                                 CHS
  v.

JAMES WALKER,                                    MEMORANDUM*

              Respondent - Appellee.


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

                      Argued and Submitted August 31, 2011
                            San Francisco, California

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

       Petitioner-Appellant Lonnie Shoulders appeals the district court’s denial of

his habeas petition under 28 U.S.C. § 2254. In 2004, Shoulders was convicted in

the Superior Court of Shasta County, California of a petty theft offense, enhanced

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
by a prior theft conviction. Shoulders argues that his trial counsel rendered

ineffective assistance by agreeing to stipulate to the prior conviction before the

jury. The California appellate court held that counsel’s performance was indeed

ineffective, but that Shoulders was not prejudiced by counsel’s ineffectiveness.

      This court reviews de novo a district court’s denial of a state prisoner’s

petition for a writ of habeas corpus. Murdoch v. Castro, 609 F.3d 983, 989 (9th

Cir. 2010) (en banc). The district court’s findings of fact are reviewed for clear

error, legal conclusions are reviewed de novo, and the court may affirm on any

ground supported by the record. Kemp v. Ryan, 638 F.3d 1245, 1254 (9th Cir.

2011).

      Because Shoulders presents a claim of ineffective assistance of counsel, “the

relevant clearly established law derives from” Strickland v. Washington, 466 U.S.

668 (1984). Premo v. Moore, 131 S. Ct. 733, 737–38 (2011). Strickland requires

proof of both deficient performance by counsel and prejudice to the petitioner. Id.

at 739. Both the state appellate court and the district court concluded that the first

prong of the Strickland test, deficient performance by counsel, was satisfied, and

respondent does not contest this finding in his brief; therefore, the only issue

before this court is the prejudice prong. See Martinez-Serrano v. I.N.S., 94 F.3d




                                           2
1256, 1259 (9th Cir. 1996) (issues not addressed in argument portion of brief are

deemed waived).

      To establish prejudice, Shoulders “must show that there is 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. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. “In assessing prejudice under Strickland, the question is not

whether a court can be certain counsel’s performance had no effect on the outcome

or whether it is possible a reasonable doubt might have been established if counsel

acted differently.” Harrington v. Richter, 131 S. Ct. 770, 791 (2011). “The

likelihood of a different result must be substantial, not just conceivable.” Id.

      The California appellate court concluded that there was no reasonable

probability that, but for counsel’s ineffectiveness in agreeing to stipulate to the

prior conviction before the jury, the result of the proceeding would have been

different. Shoulders was arrested after he purchased two compact discs at a

department store. According to the California Court of Appeal, it was uncontested

that, in addition to the two he had purchased, Shoulders had hidden a third CD in

his pants and, after paying for the other two, transferred the third into his shopping

bag and left the store. The trial court held that, given this strong evidence against


                                           3
Shoulders, informing the jury of Shoulders’ previous theft conviction, while error,

was not prejudicial.

      Shoulders maintains that the state appellate court made the prejudice

determination improperly, as it relied on the trial testimony of store personnel and

the arresting police officer, but did not view the store surveillance tape – shown to

the jury at trial – of Shoulders’ activities in the store. Because the store employee

witnesses had not watched Shoulders’ activities directly, but rather via surveillance

camera, the surveillance tape, Shoulders points out, was the only source of

information they had of the period before they approached him outside the store.

Moreover, the surveillance video is ambiguous. It is difficult to discern from the

recording whether or when Shoulders put the CD in his pants and later transferred

it to his shopping bag.

      Shoulders contends that the Constitution requires a habeas court determining

whether the ineffective assistance of counsel prejudiced a defendant to consider the

entire trial court record. See Strickland v. Washington, 466 U.S. 668, 695 (1984)

(“[A] court hearing an ineffectiveness claim must consider the totality of the

evidence before the judge or jury.”). Shoulders argues that the California Court of

Appeal did not do so. Because that court did not view the surveillance tape,

according to Shoulders, we should not defer to the factual determinations


                                          4
underlying its prejudice decision as we otherwise would under AEDPA, 28 U.S.C.

§ 2254(d).

      Regardless of whether we apply the deferential AEDPA standard of review,

or assume that Shoulders is correct and review the issue of prejudice de novo,

viewing all the evidence presented at trial, including the surveillance tape, our

conclusion is the same: the ineffective assistance of Shoulders’ counsel did not

prejudice his trial. Shoulders admitted in a police interrogation that he put the CD

in his pants but stated that he intended to pay for it. The surveillance tape shows

unequivocally that Shoulders paid for only two CDs and that only two were put in

his shopping bag. Yet, it is uncontested that when he was stopped after walking

out of the store, there were three CDs in his bag. Therefore, however he managed

to do so, the fact is that rather than taking steps to pay for the third CD, Shoulders

instead transferred it into his shopping bag without purchasing it.

      Considering the strong evidence against Shoulders, there was no reasonable

probability that, but for the fact that the jury was informed about Shoulders’ prior

theft conviction, the proceeding would have been different. The habeas petition

was therefore properly denied.

AFFIRMED.




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