                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             OCT 14 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KEELON T. JENKINS,                                No. 11-15030

              Petitioner - Appellant,             D.C. No. 3:05-cv-02003-MHP

 v.

MICHAEL S. EVANS, Warden,                         MEMORANDUM*

              Respondent - Appellee.


                        On Remand from the En Banc Court

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

      Before us on remand from the en banc court is Jenkins’s claim that his trial

counsel rendered ineffective assistance, “which is based on his allegation that trial

counsel attacked Jenkins’s credibility at trial.” McDaniels v. Kirkland, 627 Fed.

Appx. 672, 673 (9th Cir. 2015) (unpublished disposition).

      Our review is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). Under AEDPA, we are limited to deciding whether the

California Supreme Court’s summary denial of habeas relief was: (1) “contrary to,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States”; or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). When reviewing an

ineffective assistance claim through the lens of habeas, our review is “doubly

deferential.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). “The

pivotal question is whether the state court’s application of the Strickland standard

was unreasonable. This is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86,

101 (2011).

      Under this standard of review, we hold that the California Supreme Court

did not unreasonably apply Strickland in summarily denying Jenkins’s ineffective

assistance claim. Jenkins’s claim of ineffective assistance is governed by the

familiar two-part ineffective assistance of counsel test provided by the Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard,

Jenkins must first show that “counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. Even if we assume that Jenkins’s attorney

undermined Jenkins’s credibility (which the State contests), the California

Supreme Court could have reasonably decided that counsel did not perform

deficiently. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam) (rejecting
an ineffective assistance of counsel claim where an attorney called his client a “bad

person, lousy drug addict, stinking thief, [and] jail bird”). Moreover, even if

counsel performed deficiently, the California Supreme Court could have rejected

Jenkins’s claim because he failed to establish 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. We therefore affirm the district

court’s decision denying Jenkins’s claim.

      Jenkins’s motion for leave to file his supplemental brief is granted.

      AFFIRMED.
                                                                               FILED
Jenkins v. Evans, No. 11-15030
                                                                                OCT 14 2016
BYBEE, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


      At Petitioner Keelon Jenkins’s murder trial, a vocal and dramatic dispute

between Jenkins and his lawyer played out in front of the jury. Jenkins and his

counsel agreed that Jenkins shot a Brink’s truck guard after what he believed to be

a staged robbery went awry,1 but disagreed as to the identity of the man who

orchestrated that hold-up: Jenkins maintained—and testified at trial—that a man

named Frank Valentine hatched the plot, while Jenkins’s counsel repeatedly told

the jury that a man named Anthony Young was responsible. Although I recognize

that, under AEDPA, our review of Jenkins’s ineffective assistance claim is “doubly

deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009), I nonetheless think

Jenkins has shown that “the state court’s application of the Strickland [v.

Washington, 466 U.S. 668 (1984)] standard was unreasonable,” Harrington v.

Richter, 562 U.S. 86, 101 (2011). Accordingly, I would grant Jenkins’s habeas

petition and I respectfully dissent from my colleagues’ decision holding otherwise.




      1
        The defense theory was that Jenkins had been informed by the man that
coordinated the staged robbery that the Brinks guard was in on the plot and would
help facilitate the theft of money from his truck in exchange for a cut of the loot.
Because Jenkins believed that the robbery was staged, the defense team posited, he
had not committed murder during the commission of a felony and was therefore
not liable for first-degree murder under the felony-murder rule.
                                          I

      The conflict between Jenkins and his counsel over the identity of the man

who masterminded the robbery repeatedly surfaced before and during the trial. For

example, before his counsel could offer an opening statement to the jury, Jenkins

objected and explained:

      I’ve repeatedly told counsel that I don’t want him to give a statement
      that . . . [accuses] someone I’ve told him numerous times that has no
      involvement[.] . . . What he’s doing is contradicting my testimony
      which is going against me. Therefore, he’s serving as the prosecution
      against my defense if he’s going to do this.

The court overruled Jenkins’s objection and allowed his counsel to proceed with

opening statements—a statement counsel described to the jury as “unconditionally

unauthorized by [his] client who [did] not want [him] to make this statement.”

Jenkins’s counsel then pointed the finger at Anthony Young, informed the jury that

three witnesses would testify to Young’s involvement in the staged hold-up, and

explicitly prepared the jury to hear testimony from his client contradicting the

theory that he had just laid out. As promised, Jenkins provided testimony at odds

with his counsel’s opening statement, explaining that Valentine masterminded the

robbery-gone-wrong and denying that Young was involved.2 Despite his


      2
       Robert McDaniels, Jenkins’s co-defendant, also testified that Young had no
involvement and that Valentine planned the robbery.

                                          2
representations to the contrary, however, Jenkins’s counsel did not follow through

with the presentation of evidence connecting Young—rather than Valentine—to

the plot.

       By closing arguments, the prosecutor had keyed into this conflict, framing

the trial as “all about credibility,” and ripping into the disagreement between

Jenkins and his counsel:

       And the problem I was having is that I’m hearing too many
       masterminds. I’m hearing Anthony Young, then I’m hearing Frank
       Valentine, and then in [defense counsel’s] opening statement he told
       you he proved several things that he was not able to prove [like]
       Anthony Young was the mastermind.
              ...
       [And that’s] because somewhere midstream Frank Valentine came
       into the picture. And here’s a simple question: How many innocent
       people have two different defenses? How many innocent people have
       different theories on how they got to that location? This is clearly a
       schism somewhere in the defense.
              ...
       [Defense counsel] made a very interesting comment yesterday when
       he said he frankly didn’t believe his client in that Frank Valentine was
       the mastermind. The reason why I find that interesting is because if
       Mr. Jenkins is going to lie to his attorney, what makes you think he’s
       not willing to lie to you because clearly they have different opinions
       as to how to beat this case.

       For his part, Jenkins’s counsel doubled down during his closing argument on

the discrepancy, reminding the jury once again that he thought his client was lying

on the witness stand:



                                          3
      There are a number of theories of why [the defendants] went [to the
      scene of the robbery]. One is what they told you. Now, if you think
      that I believe everything that they said, you already know the answer
      to that because I started in my opening statement by telling you that I
      believe the person who set this up is someone other than the person
      about whom they testified. And I’ve had disagreements with my
      client about that for years. Nonetheless, I believe that only because of
      the evidence in this case.

      The jury returned with a conviction for first-degree murder and the court

sentenced Jenkins to life in prison without the possibility of parole. In a summary

denial, the California Supreme Court rejected Jenkins’s habeas petition raising the

ineffective assistance claim now before us.

                                            II

      The majority holds that “the California Supreme Court could have

reasonably decided that counsel did not perform deficiently.” Mem. Dispo. 3. I

disagree. Jenkins’s counsel essentially called his client a liar in his opening and

closing statements, and completely undermined Jenkins’s testimony and credibility

in front of the jury. And for what? As the prosecutor pointed out, Jenkins’s

counsel didn’t even put up the evidence he promised to bring forward that would

show that it was Young—not Valentine—who masterminded the staged robbery.

It is one thing to defer to the good-faith strategic decisions of counsel; it is a very

different thing to endorse counsel’s decision to present a theory of defense that he



                                            4
did not prove and that explicitly contradicted the testimony put forward by his

client. Because Jenkins’s counsel impeached the credibility of his own client

without offering alternative evidence to repair the damage he caused, I think

counsel’s performance fell below an objective standard of reasonableness.

      I also think it is clear that counsel’s inadequate performance prejudiced

Jenkins’s defense. The Supreme Court has explained that to demonstrate

prejudice, “[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,” and defined “a reasonable probability” as “a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Here, the

jury required three days of deliberations to reach a verdict on facts that—save for

the staged-robbery/felony-murder question—were relatively straightforward.

Additionally, as outlined above, the prosecutor capitalized on the conflict between

Jenkins and his counsel, repeatedly calling Jenkins’s truthfulness into question and

making “credibility” the centerpiece of his case and his closing argument. Finally,

because Jenkins’s counsel decided to destroy his client’s defense theory without

providing an alternate theory in its place, he left Jenkins without much of a defense

at all. Under these facts—and even considering AEDPA’s demanding standard of

review—I think Jenkins has adequately demonstrated that his counsel’s actions

                                          5
have “undermine[d] confidence in the outcome” of his trial. Id.

      I respectfully dissent.3




      3
        I concur, however, in the majority’s decision to grant Jenkins’s motion for
leave to file his supplemental brief.

                                         6
