                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GEORGE W. GIBBS,                                No.    18-16043

                Petitioner-Appellant,           D.C. No.
                                                2:11-cv-00750-KJD-CWH
 v.

ROBERT LEGRAND, Warden;        MEMORANDUM*
ATTORNEY GENERAL FOR THE STATE
OF NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted October 24, 2019
                           San Francisco, California

Before: WALLACE and BRESS, Circuit Judges, and LASNIK,** District Judge.

      George Gibbs appeals from the district court’s denial of his 28 U.S.C. § 2254

habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

      As relevant here, in his habeas appeal before the Nevada Supreme Court,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Gibbs argued that he was entitled to habeas relief because his trial counsel rendered

ineffective assistance of counsel by failing to file a motion to sever drug charges

from sexual assault charges. The Nevada Supreme Court agreed that Gibbs’s counsel

was “deficient for failing to move to sever the counts,” but rejected Gibbs’s

ineffective assistance claim on the ground that Gibbs could not establish prejudice.

      In his § 2254 petition before the district court, Gibbs argued, in part, that the

Nevada Supreme Court’s rejection of his ineffective assistance habeas claim was

contrary to and an unreasonable application of, Strickland v. Washington, 466 U.S.

668 (1984). The district court denied Gibb’s § 2254 petition, but issued a certificate

of appealability as to that issue.

      We review a district court’s denial of habeas relief de novo. Earp v. Davis,

881 F.3d 1135, 1142 (9th Cir.), cert. denied 139 S. Ct. 566 (2018). However, like

the district court, we are “not called upon to decide the matter anew” because the

Antiterrorism and Effective Death Penalty Act (AEDPA)1 “establishes a highly

deferential standard for reviewing state court determinations.” Lambert v. Blodgett,

393 F.3d 943, 964–65 (9th Cir. 2004). When state courts have denied habeas relief,

federal courts may grant relief “only when [the] state-court decision is objectively

unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 27 (2002). “The deferential


1
  Because Gibbs’s federal petition was filed after April 24, 1996, we review it under
the standards detailed in AEDPA. Murray v. Schriro, 745 F.3d 984, 996 (9th Cir.
2014) (citation omitted).

                                          2
standard imposed under AEDPA cloaks a state court’s determination with

reasonableness, so long as ‘fairminded jurists could disagree’ as to whether a claim

lacks merit.” Murray, 745 F.3d 998. As is relevant here, AEDPA authorizes habeas

relief if the state court’s decision was “contrary to, or involved an unreasonable

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

of the United States.” 28 U.S.C. § 2254(d)(1).

      Ineffective assistance claims are governed by Strickland, the holdings of

which constitute “clearly established Federal law” for the purposes of AEDPA. See

Cullen v. Pinholster, 563 U.S. 170, 182 (2011). To establish that counsel was

ineffective under Strickland, a petitioner must demonstrate that “counsel’s

performance was deficient, and that the deficiency prejudiced the defense.” Wiggins

v. Smith, 539 U.S. 510, 521 (2003), citing Strickland, 466 U.S. at 687.

      However, the “question before us is not whether we believe [Gibbs] suffered

prejudice and the [Nevada] Supreme Court was incorrect in finding none; instead,

we must ask whether the [Nevada] Supreme Court’s determination of no prejudice

was unreasonable—a substantially higher threshold.” Avena v. Chappell, 932 F.3d

1237, 1250–51 (9th Cir. 2019) (citations and internal quotation marks omitted). In

other words, Gibbs “must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded


                                          3
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Gibbs has not met

this burden.

      Although the Nevada Supreme Court cited the “substantial and injurious

effect” test articulated in Robins v. State, 106 Nev. 611, 619 (1990), instead of the

standard in Strickland,2 AEDPA review does not “require citation” of Supreme

Court cases by the state court—or even “awareness” of those cases—“so long as

neither the reasoning nor the result of the state-court decision contradicts them.”

Early v. Packer, 537 U.S. 3, 8 (2002).

      Here, neither “the reasoning nor the result” of the Nevada Supreme Court’s

decision contradicts Strickland. The Nevada Supreme Court rested its no-prejudice

holding on its conclusion that the evidence supporting the drug charges was

“overwhelming.” The existence of “overwhelming” evidence is an appropriate

reason to conclude that no prejudice exists under Strickland because it supports the

conclusion that there would be no “reasonable probability” of a different result

absent counsel’s error. See Strickland, 466 U.S. at 700 (“Given the overwhelming

aggravating factors, there is no reasonable probability that the omitted evidence

would have changed the conclusion . . . .”); see also id. at 696 (“[A] verdict or




2
  To establish prejudice under Strickland, “[t]he defendant 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.

                                          4
conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support”).

      Moreover, an independent review of the record reveals that the Nevada

Supreme    Court’s    determination    that   the   evidence   against   Gibbs    was

“overwhelming” was not “objectively unreasonable.” For example, Detective

Martin testified that Gibbs admitted to the police that “he had access” to a room

containing a methamphetamine lab and other drug paraphernalia “and he could go

back there to help with the cooking” of methamphetamine. In that room, police also

located Gibbs’s work ID and a letter mailed to Gibbs at the property’s address.

      In light of this and other evidence supporting the drug charges, Gibbs has not

demonstrated that “the state court’s ruling . . . was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Accordingly,

the Nevada Supreme Court’s decision cannot be characterized as objectively

unreasonable, and the district court properly denied Gibbs’s habeas petition.

      AFFIRMED.




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