                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 27 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KELLY ALICE KESSLER,                            No.    16-15987

                Petitioner-Appellant,           D.C. No. CR-10-00322 LJO-SKO

 v.

DEBORAH K. JOHNSON
and JEFFREY A. BEARD,
                                                MEMORANDUM*
                Respondents-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted April 9, 2018
                           San Francisco, California

Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Petitioner Kelly Alice Kessler appeals the District Court’s denial of her

petition for a writ of habeas corpus brought under the 1996 Antiterrorism and




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
                                          1
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. We have jurisdiction

pursuant to 28 U.S.C. § 2253. We affirm.

      Petitioner’s sole claim in this appeal is that she was denied effective assistance

of counsel under the Sixth Amendment to the United States Constitution because her

trial counsel failed to investigate her prior Nevada burglary conviction to determine

whether it constituted a strike under the California Three Strikes Law, Cal. Penal

Code § 667(b)-(i), and because upon that counsel’s advice, she admitted that

conviction as a strike rather than try it before a jury. We review de novo a district

court’s decision to deny habeas relief. Bemore v. Chappell, 788 F.3d 1151, 1160

(9th Cir. 2015).

      Under AEDPA, the Court considers “the last state court merits decision,” id.,

and relief may only be granted if those proceedings “(1) resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court . . . ; or (2) resulted in a decision

that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” § 2254(d). Here, the “last state court merits

decision” is the August 20, 2010 opinion of the California Court of Appeal.

      AEDPA provides a “highly deferential standard for evaluating state-court

rulings” which “demands that state-court decisions be given the benefit of the

doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted). Relief


                                           2
under AEDPA requires that the “unreasonable application” of clearly established

federal law be “objectively unreasonable, not merely wrong[.]”              Rowland v.

Chappell, 876 F.3d 1174, 1181 (9th Cir. 2017) (quoting White v. Woodall, 134 S.Ct.

1697, 1702 (2014)). Habeas relief may be granted only where the petitioner has

shown that the last state court merits decision is “so lacking in justification that there

was an error . . . beyond any possibility for fairminded disagreement.” Id. (quoting

Woodall, 134 S.Ct. at 1702).

      The “clearly established federal law” applied to an ineffective assistance of

counsel (“IAC”) claim is Strickland v. Washington, 466 U.S. 668 (1984) and its

progeny. In order to prevail on an IAC claim, the plaintiff must show both that

counsel was deficient and that the plaintiff was prejudiced as a result of that

deficiency. Rowland, 876 F.3d at 1183 (citing Strickland, 466 U.S. at 687–88).

      AEDPA and Strickland each provide a “highly deferential” standard of

review, “and when the two apply in tandem, review is ‘doubly’ so.” Id. (quoting

Harrington v. Richter, 562 U.S. 86, 105 (2011)). “When [AEDPA] applies, the

question is not whether counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Richter, 562 U.S. at 105. Put another way, under AEDPA, “[t]he pivotal

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

unreasonable.” Rowland, 876 F.3d at 1183 (quoting Richter, 562 U.S. at 101).


                                            3
      1.    Deficiency under Strickland requires showing that “counsel’s

representation fell below an objective standard of reasonableness.” Id. (quoting

Strickland, 466 U.S. at 688). Petitioner has not demonstrated that there is no

“reasonable argument that counsel satisfied Strickland’s deferential standard”

regarding deficiency. Richter, 562 U.S. at 105.

      The California Court of Appeal reasonably found that Petitioner failed to

provide a detailed declaration recounting what she told trial counsel regarding the

prior Nevada conviction, and what he told her. Petitioner is not helped by trial

counsel’s February 28, 2003 statement to trial prosecution that he was unaware of,

and unable to stipulate to, the equivalency of the prior Nevada burglary to a

California first degree burglary. That exchange does not speak to the sufficiency of

trial counsel’s investigation of the prior Nevada burglary conviction. Nor does it

show that counsel was wholly ignorant of an operative difference between the

Nevada burglary statute and its California analog, namely, that the former lacked

degrees and would not constitute a strike under the California Three Strikes Law.

Both inferences are speculative.

      Counsel had access to known evidence from the prior Nevada burglary case

supporting a finding of habitation. An amended criminal complaint from that case

identifies the specific location burglarized and notes that it was a “Residence.”

Petitioner told police she was in the victim’s house, and a judicial probable cause


                                         4
finding incorporated that statement. The trial prosecutor said that he disclosed the

documentation in the record to trial counsel “before and prior to” Petitioner’s waiver

of trial. The Superior Court and the Court of Appeal found those documents

admissible.

      Trial transcript excerpts demonstrate that counsel’s advice to admit the prior

conviction as a strike rather than try it was guided by tactical considerations, and

that he consulted with Petitioner as to the direct legal effect of the admission.

Petitioner thus does not overcome the “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,” nor the premise

that the challenged action “might be considered sound trial strategy.” Strickland,

466 U.S. at 689 (citation omitted).

      In sum, the question of trial counsel’s deficiency poses, at the very least, a

“possibility for fairminded disagreement.” Rowland, 876 F.3d at 1181 (quoting

Woodall, 134 S.Ct. at 1702). The California Court of Appeal’s denial of Petitioner’s

IAC claim was reasonable.1


1
  In asserting trial counsel’s “general pattern of professional misconduct,” and its
relevance to counsel’s “state of mind at the time he was representing Petitioner,”
Petitioner points to counsel’s State Bar file, disciplinary proceedings, and
subsequent disbarment. However, Petitioner has not shown that counsel committed
any actual errors or omissions in her case. “[T]here is generally no basis for finding
a Sixth Amendment violation unless the accused can show how specific errors of
counsel undermined the reliability of the finding of guilt.” U.S. v. Cronic, 466 U.S.
648, 659 n.26 (1984). Representation by a lawyer previously suspended from
practice by a state bar does not automatically result in the denial of the Sixth
                                          5
      2. Because Petitioner has failed to demonstrate deficient performance, this

Court need not reach the question of prejudice. Strickland, 466 U.S. at 697.

Regardless, Petitioner’s prejudice arguments fail. We review those arguments de

novo because the Court of Appeal did not analyze potential prejudice. Crace v.

Herzog, 798 F.3d 840, 852 (9th Cir. 2015).

      Demonstrating prejudice under the second prong of Strickland requires

showing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Richter, 562 U.S. at 104

(quoting Strickland, 466 U.S. at 694). Petitioner does not furnish cognizable

evidence demonstrating a reasonable probability that her sentencing would have

been different had she gone to trial on the prior conviction rather than admit it for

tactical reasons. Petitioner failed at all stages to provide a detailed declaration

recounting her conversations with trial counsel regarding the prior Nevada

conviction. Arguments as to the likelihood of Petitioner’s success in trying the prior

conviction are speculative. Moreover, under California law, “in determining the



Amendment right to counsel. United States v. Mouzin, 785 F.2d 682, 696 (9th Cir.
1986); see also Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir. 2006). “A
defendant must show actual errors and omissions by counsel that a conscientious
advocate would not have made, and which prejudiced him.” Mouzin, 785 F.2d at
696 (citation omitted). None of Petitioner’s citations to trial counsel’s file
demonstrate a connection between the conduct for which he was disciplined and his
representation of her.

                                          6
truth of a prior-conviction allegation, the trier of fact may look to the entire record

of the conviction.” People v. Guerrero, 748 P.2d 1150, 1157 (Cal. 1988). When the

California Superior Court reviewed the record of the prior Nevada conviction on

habeas remand, it concluded that Petitioner burglarized an inhabited dwelling, a

serious felony for the purposes of the California Three Strikes Law.

      For the foregoing reasons, the district court properly denied the petition for a

writ of habeas corpus.

AFFIRMED.




                                          7
