                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROGER SAESEE,                              No. 10-15895
           Petitioner-Appellant,
                                              D.C. No.
               v.                          1:08-cv-01152-
                                            OWW-JMD
MIKE MCDONALD, Warden,
         Respondent-Appellee.                OPINION


     Appeal from the United States District Court
         for the Eastern District of California
  Oliver W. Wanger, Senior District Judge, Presiding

                 Argued and Submitted
       April 17, 2013—San Francisco, California

                    Filed August 5, 2013

   Before: John T. Noonan, Diarmuid F. O’Scannlain,
          and N. Randy Smith, Circuit Judges.

              Opinion by Judge Noonan
2                     SAESEE V. MCDONALD

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition alleging ineffective
assistance when counsel allegedly promised in his opening
statement that a witness would testify.

    The panel held that the state court was not unreasonable
in concluding that counsel did not make such a promise,
explaining that it was rather an expression of hope that left
the jury open to the possibility that the witness would not
appear.


                            COUNSEL

Arthur Henry Weed, Santa Barbara, California, for Petitioner-
Appellant.

Lloyd George Carter and Lewis Albert Martinez, Deputy
Attorneys General, Fresno, California, for Respondent-
Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   SAESEE V. MCDONALD                       3

                         OPINION

NOONAN, Circuit Judge:

    Roger Saesee appeals the denial of his petition for a writ
of habeas corpus. We find that Saesee’s counsel was not
constitutionally ineffective because he did not promise the
jury that a witness would testify. We affirm.

                          FACTS

    On November 15, 2004, Joe Fernandez was barbequing
with his friend Fernando Cantu when a group of men,
including Defendant Saesee, approached them. At least two
of the men were members of the Oriental Troop (OT) Gang,
a predominantly Asian gang.

     One of the men asked Fernandez and Cantu if they were
“fleas,” a derogatory term used to insult members of the
Mexican Gangster Boys (MGB). Angered, Fernandez
responded that neither he nor Cantu was part of the MGB. At
this point, Fernandez recognized Saesee and said, according
to Cantu’s testimony, “[Saesee] shot up my house a couple
months ago. Let’s go in the parking lot and handle it.”
Fernandez then took off his shirt, challenged the men to a
fistfight, and yelled, “Fuck OTs, fuck Crips . . . What, you
guys gonna shoot me?” Saesee and another man took out their
guns and shot at Fernandez, who died from multiple gunshot
wounds.

    At issue in this case is the opening statement of James
Michael Kordell, Saesee’s defense counsel. In his opening
statement Kordell informed the jury of the defense theory:
Saesee could not have been present at the scene of the
4                  SAESEE V. MCDONALD

shooting because he was at the house of Breanna Saecho, his
then-13-year-old girlfriend. Kordell then stated that Breanna
had already confirmed Saesee’s story that Breanna’s
grandfather could also confirm Saesee’s alibi:

       [W]e found out that there’s an old man, Long
       Shio Saechao. [He] was in that house the
       night [Saesee] came over. . . , He was mad as
       hell that the girl [Breanna] told the police. He
       was mad as hell that she was subpoenaed to
       be here. I’m counting on him to tell the truth
       and corroborate what the girl said.

Shortly after, Kordell’s opening statement concluded.

    At trial, Breanna identified Saesee. She testified that he
had been her boyfriend. She also testified that on November
15, 2004, the day of the shooting, she had spent the whole
day and night with him.

    At the close of Breanna’s testimony, Kordell stated, “If
we could check outside for one witness in the hope he might
be here.” Kordell did not state the identity of the person he
sought. He then stated, “The defense rests.” Kordell neither
called the grandfather to the stand, nor explained his absence.

    Saesee now argues that Kordell’s statement to the
jury–“I’m counting on him to tell the truth and corroborate
what the girl said”– constitutes a broken promise that
prejudiced the outcome of the trial and rendered Kordell
constitutionally ineffective.

   Proceedings. On May 26, 2006, the Tulare County jury
found Saesee guilty of one count of first degree murder, one
                   SAESEE V. MCDONALD                        5

count of shooting at an inhabited dwelling, and one count of
permitting another to shoot from a vehicle. Saesee received
a sentence of life without parole and a concurrent term of
twenty-five years to life. The California Court of Appeal
affirmed the judgment. Relevant to this appeal, the California
Court of Appeal concluded that, even assuming that Saesee’s
trial counsel performed deficiently in referencing Breanna’s
grandfather during his opening statement, his performance
did not prejudice Saesee’s trial because his discussion of the
grandfather “in no way amounted to a promise that he would
produce the grandfather as a witness.” The California
Supreme Court denied review on February 20, 2008. On April
30, 2008, the Tulare County Superior Court denied Saesee’s
habeas petition. On June 12, 2008, the Fifth District Court of
Appeal denied Saesee’s habeas petition, finding that Saesee
could not establish prejudice. On July 28, 2008, Saesee filed
a habeas petition in the district court. On November 17, 2009,
John Dixon, magistrate judge, recommended that the petition
for writ of habeas be denied. On March 19, 2010, Judge
Wanger adopted the findings of the magistrate judge. Judge
Wanger stated, “While the statement made by Petitioner’s
trial counsel may be construed as a promise to produce the
grandfather, the statements are not so clear cut that the State
court’s finding, that there was no promise, was objectively
unreasonable.” On April 16, 2010, Saesee filed a notice of
appeal.

   On January 20, 2012, this Court issued a certificate of
appealability.

   Standard of Review. “This court reviews the district
court’s denial of a 28 U.S.C. § 2254 habeas petition de novo.”
Williams v. Warden, 422 F.3d 1006, 1008 (9th Cir. 2005).
Because Saesee filed this petition after April 24, 1996, the
6                  SAESEE V. MCDONALD

Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996 governs review of his claims. Phillips v. Woodford,
267 F.3d 966, 973 (9th Cir. 2001).

                        ANALYSIS

    The California Court of Appeal concluded that Saesee had
not demonstrated ineffective assistance of counsel. Under
AEDPA, a federal court may grant habeas relief when a state
court decision “involved an unreasonable application of[]
clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of
the facts.” 28 U.S.C. § 2254(d). A state court unreasonably
applies clearly established federal law when it “identifies the
correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (quoting Williams v. Taylor, 529 U.S. 362, 413
(2000)). The application must be “more than incorrect or
erroneous.” Id. It must be “objectively unreasonable,” id.,
such that it is “beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 787
(2011).

    Under AEDPA, the principles of Strickland v.
Washington are “clearly established” for the purposes of
deciding ineffective assistance of counsel claims. Williams v.
Taylor, 529 U.S. at 390–91. Review of ineffective assistance
claims under § 2254(d)(1) is “doubly deferential.” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009). Relief “may be
granted only if the state-court decision unreasonably applied
the more general standard for ineffective-assistance-of-
counsel claims established by Strickland, in which [the
                    SAESEE V. MCDONALD                           7

Supreme Court] held that a defendant must show both
deficient performance and prejudice in order to prove that he
has received ineffective assistance of counsel.” Id. at 122.

    To satisfy the prejudice prong under Strickland, a
defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U.S. 668, 694
(1984). The California Court of Appeal declined to reach the
question of whether Saesee’s counsel was deficient and we
also decline to do so here. Id. at 697 (“If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”).

    This is a case of first impression in the Ninth Circuit. In
adjudicating Saesee’s ineffective assistance claim, the
California Court of Appeal and the district court assumed
that, in some cases, defense counsel’s unfulfilled promise to
produce a witness at trial could constitute ineffective
assistance of counsel, in accordance with the decisions of the
First, Third, and Seventh Circuits and two federal district
courts in California. Most recently, in Williams v. Woodford,
859 F. Supp. 2d 1154, 1173 (E.D. Cal. 2012), Chief Judge
Kozinski applied the approach of the First, Third, and
Seventh Circuits to find that the prejudice caused by defense
counsel’s broken promise to the jury satisfied the Strickland
standard, and granted habeas relief under AEDPA. There,
Williams’s counsel had promised in his opening statement
that the jury would hear from Williams and two witnesses,
Oliphant and Pollard, who would confirm Williams’s alibi.
Id. at 1162. Judge Kozinski stated that “[w]hat fatally
undermined Williams’s defense were counsel’s unfulfilled
8                  SAESEE V. MCDONALD

promises that these witnesses would testify.” Id. at 1173.
Judge Kozinski reasoned that a promise to present a particular
piece of testimony creates expectations in jurors’ minds:

       By promising the jury that Williams would
       testify, and would do so as to specific facts,
       the lawyer raised certain expectations in the
       jurors’ minds, expectations that would count
       heavily against Williams when they went
       unfulfilled. The lawyer enumerated the
       various ways in which Williams would cast
       doubt on the government’s case: He would
       deny that he committed the crime . . . , While
       a defendant’s denials are not the strongest
       evidence, the failure to make those denials,
       when the jury was promised that he would,
       left the strong inference that everything
       Williams failed to deny must, in fact, be true.

Id. at 1164. Judge Kozinski also noted the decision of Judge
Feess of the Central District of California in Madrigal v.
Yates, 662 F. Supp. 2d 1162, 1183 (C.D. Cal. 2009), which
embraced the reasoning of the First and Seventh Circuits. Id.

    In Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), the
First Circuit granted the petitioner, who had been charged
with drug trafficking, habeas relief under AEDPA. Id. at
34–36. In his opening statement, Ouber’s counsel framed the
case as hinging upon whether Ouber knew that the envelope
she had given to a government undercover narcotics agent
contained cocaine. Id. at 22. There, counsel’s failure to
present the promised testimony was an “egregious” error that,
“but for its commission, a different outcome might well have
eventuated.” Id. at 33–34; see also Anderson v. Butler,
                    SAESEE V. MCDONALD                         9

858 F.2d 16, 18 (1st Cir. 1988) (finding that counsel was
ineffective when he broke a promise he made in his opening
statement to present key expert psychiatric witnesses).

    The Third Circuit also granted relief using similar
reasoning: “The failure of counsel to produce evidence which
he promised the jury during his opening statement that he
would produce is indeed a damaging failure sufficient of
itself to support a claim of ineffectiveness of counsel.”
McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3rd Cir. 1993).
Finally, the Seventh Circuit found that when an attorney fails
to produce testimony that he has promised, the damage to a
defendant’s case is unequivocal:

        Promising a particular type of testimony
        creates an expectation in the minds of jurors,
        and when defense counsel without
        explanation fails to keep that promise, the jury
        may well infer that the testimony would have
        been adverse to his client and may also
        question the attorney’s credibility. In no sense
        does it serve the defendant’s interests.

United States ex rel. Hampton v. Leibach, 347 F.3d 219, 259
(7th Cir. 2003); see also Harris v. Reed, 894 F.2d 871, 879
(7th Cir. 1990) (“When counsel failed to produce the
witnesses to support this version, the jury likely concluded
that counsel could not live up to the claims made in the
opening.”).

    A juror’s impression is fragile. It is shaped by his
confidence in counsel’s integrity. When counsel promises a
witness will testify, the juror expects to hear the testimony. If
the promised witness never takes the stand, the juror is left to
10                 SAESEE V. MCDONALD

wonder why. The juror will naturally speculate why the
witness backed out, and whether the absence of that witness
leaves a gaping hole in the defense theory. Having waited
vigilantly for the promised testimony, counting on it to verify
the defense theory, the juror may resolve his confusion
through negative inferences. In addition to doubting the
defense theory, the juror may also doubt the credibility of
counsel. By failing to present promised testimony, counsel
has broken “a pact between counsel and jury,” in which the
juror promises to keep an open mind in return for the
counsel’s submission of proof. Williams, 859 F. Supp. 2d at
1167. When counsel breaks that pact, he breaks also the
jury’s trust in the client. Thus, in some cases–particularly
cases where the promised witness was key to the defense
theory of the case and where the witness’s absence goes
unexplained–a counsel’s broken promise to produce the
witness may result in prejudice to the defendant.

     In order for the prejudice prong to be satisfied, however,
it is essential that a promise be made. Of course, had the
California Court of Appeal concluded that Kordell broke a
promise to present a witness, it was free to assign prejudice
to the broken promise. However, no clearly established
federal law required the California Court of Appeal to
presume prejudice for a broken promise or to assign the
alleged broken promise any particular prejudicial weight. See
Ouber, 293 F.3d at 22. In any event, the California Court of
Appeal reasonably concluded that Kordell did not make a
promise to the jury in the opening statement. A promise
creates expectation: did the counsel say that the testimony
will happen, and did he present such testimony as supportive
of his theory? Here, Kordell had told the jury that the
grandfather was “mad as hell” that his granddaughter spoke
to the police and was subpoenaed. Viewed contextually,
                   SAESEE V. MCDONALD                      11

Kordell’s following statement–“I’m counting on him [the
grandfather] to tell the truth and corroborate what the girl
said”–was not a promise that the grandfather would definitely
testify, but rather an expression of hope that the grandfather
might in fact appear. Although Kordell did inform the jury of
the grandfather’s existence, he left the jury open to the
possibility that the grandfather would not appear. Put simply,
Kordell did not say, “This testimony will happen.” His lack
of certainty is fatal to Saesee’s claim that a promise was
made.

   We cannot say that the California Court of Appeal was
unreasonable in concluding that Saesee’s trial counsel had not
made a promise to produce Breanna’s grandfather as an alibi
witness. No promise, no prejudice.

  Conclusion. The judgment of the district court is
AFFIRMED.
