                              NOT FOR PUBLICATION                          FILED
                       UNITED STATES COURT OF APPEALS                      MAY 22 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT



    DESHAWNTE BUCK WADE,                            No.   15-55117

                    Petitioner-Appellant,           D.C. No.
                                                    2:13-cv-06060-DMG-JCG
     v.

    NEIL McDOWELL, Warden,                          MEMORANDUM*

                    Respondent-Appellee.

                      Appeal from the United States District Court
                         for the Central District of California
                        Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted December 8, 2016
                                 Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and KORMAN,** District Judge.

          Deshawnte Wade appeals the district court’s denial of his habeas petition

under 28 U.S.C. § 2254.1 Reviewing de novo, Zapata v. Vasquez, 788 F.3d 1106,

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
1
 We granted Wade’s request for a certificate of appealability on the issues of “(1)
whether trial counsel rendered ineffective assistance by failing to object to the
1111 (9th Cir. 2015), we affirm.

      1. Wade was convicted following a jury trial of involuntary manslaughter

and assault on a child causing death. He now argues that his trial counsel was

ineffective by failing to object to the admissibility of shaken baby syndrome

evidence. To succeed, Wade must show both 1) deficiency, that his counsel’s

performance fell below an objective standard of reasonableness; and, 2) prejudice,

that there was a reasonable probability that but for the deficiency the result would

have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Wade’s claim was adjudicated on the merits in state court and, under the

Antiterrorism and Effective Death Penalty Act (AEDPA), he must also show that

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

of” clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

      The state trial court ruled on Wade’s ineffective assistance of counsel claim,

concluding that “Petitioner has failed as to demonstrate [sic] that but for counsel’s

alleged ineffectiveness, the result at trail [sic] would have been more favorable.”

The California Court of Appeal and the California Supreme Court summarily

introduction of expert medical testimony concerning shaken baby syndrome; and
(2) whether sufficient evidence was presented at trial to sustain appellant’s
convictions for inflicting a traumatic injury on a child causing death.”

                                          2
denied his subsequent petitions, so we “look through” the summary denials to this

earlier, reasoned decision by the trial court. See Ylst v. Nunnemaker, 501 U.S. 797,

806 (1991).

      Wade argues that the state court’s decision was contrary to the clearly

established law of Strickland because the state court reasoned that “but for”

counsel’s ineffectiveness, the result “would have been more favorable.” This

misstated Strickland’s standard which requires only a reasonable probability of a

different outcome. 466 U.S. at 694. If the state court’s decision was contrary to

Strickland, we must “resolve the claim without the deference AEDPA otherwise

requires.” See Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

      We need not decide whether the state court’s decision was contrary to

Strickland because even under de novo review, Wade’s claim for ineffective

assistance of counsel fails. Wade cannot show that at the time of his trial, shaken

baby syndrome evidence lacked general acceptance in the scientific community

such that the evidence must have been excluded entirely.2 As a result, he cannot

2
  At the time of his trial, new scientific evidence could not be introduced absent a
showing “first, that the reliability of the new technique has gained general
acceptance in the relevant scientific community, second, that the expert testifying
to that effect is qualified to do so, and, third, that correct scientific procedures were
used in the particular case.” People v. Roybal, 19 Cal. 4th 481, 505 (1998)

                                            3
show that an objection on this basis had a reasonable probability of success and

therefore can show neither deficiency, see Rupe v. Wood, 93 F.3d 1434, 1445 (9th

Cir. 1996), nor prejudice, see Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012).

Wade identifies no cases in which shaken baby syndrome evidence was excluded

in its entirety. As the California Court of Appeal noted well after Wade’s trial,

shaken baby syndrome evidence “is routinely admitted and has never been

excluded in a California case.” People v. Harper, No. C066337, 2012 WL 487088,

at *8 (Feb. 15, 2012). Given that shaken baby syndrome evidence was

controversial but routinely admitted at the time of Wade’s trial, his counsel was not

ineffective for focusing on vigorous cross-examination of the state’s experts and

presenting competing expert testimony in the defense case.

      2. Wade also argues that the state court of appeal was objectively

unreasonable in denying his sufficiency of the evidence claim. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979). “Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial deference.”

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012). First, the state court on direct

(defining “the Kelly-Frye rule”). The state argues that shaken baby syndrome
evidence was not a new scientific technique and therefore was not subject to the
Kelly-Frye rule at all, but we need not reach this argument.

                                          4
review may have only set aside the jury’s verdict on the grounds of insufficient

evidence if no rational trier of fact could have agreed with the jury, id., and the

“assessment of the credibility of witnesses is generally beyond the scope of

review,” Schlup v. Delo, 513 U.S. 298, 330 (1995). Second, a federal court on

habeas review may only overturn a state court decision on the merits if it was

contrary to or involved an unreasonable application of clearly established Supreme

Court precedent. 28 U.S.C. § 2254(d)(1).

      Wade fails to meet this high bar. Extensive expert medical testimony

pointed to Wade as causing the child’s death. We may not reweigh the expert

testimony to reach a different conclusion. See Cavazos v. Smith, 565 U.S. 1, 8

(2011) (reversing an appeals court for holding that a defendant had proven a

Jackson claim after an analogous battle of the experts on shaken baby syndrome

evidence). Furthermore, the state presented significant circumstantial evidence,

including that Wade appeared worried when he was found with the injured child

and that his explanation that the child had choked on a penny was undermined by

forensic evidence. Accordingly, the district court did not err by denying Wade’s

habeas petition under 28 U.S.C. § 2254.

      AFFIRMED.

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