                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 27 2011
                     UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS
                            FOR THE NINTH CIRCUIT



BRIAN GLEN BREWER,                               No. 10-55793

               Petitioner - Appellee,            D.C. No. 2:08-cv-02027-PSG-RNB

    v.
                                                 MEMORANDUM *
A. HEDGPETH, Warden,

               Respondent - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                      Argued and submitted November 7, 2011
                               Pasadena, California

Before:        SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, Senior
               District Judge.**

      A. Hedgpeth, Warden, appeals the district court’s grant of California state

prisoner Brian Glen Brewer’s petition for a writ of habeas corpus pursuant to 28

U.S.C § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Helen W. Gillmor, United States District Judge for the
District of Hawaii, sitting by designation.
review de novo, Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004), and we

reverse.

      Brewer claims he was deprived of his Sixth Amendment right to effective

assistance of counsel because his defense counsel failed to investigate two

additional alibi witnesses. The issue before us is whether the state court’s decision

rejecting this claim was objectively unreasonable. Applying “the doubly

deferential judicial review that applies to a Strickland claim evaluated under the

[28 U.S.C.] § 2254(d)(1) standard,” Knowles v. Mirzayance, 129 S. Ct. 1411, 1420

(2009), we hold that the state court’s decision was not contrary to or an

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).

A.    Background

      In 2004, Brewer was charged by the State of California with robbery and

false imprisonment in connection with a 2002 robbery of a credit union. During

the jury trial in California Superior Court, several credit union employees

identified Brewer as the robber and testified that he carried a gun. Photographs

and video surveillance tapes were shown to the jury. Brewer’s defense included

alibi testimony from his longtime friend, Adam Jones, who told the jury that he

and Brewer were in Phoenix, Arizona, during the time of the robbery. Brewer was

convicted of robbery by violence and false imprisonment by violence. He

appealed his conviction, the California Court of Appeal affirmed, and his petition



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to the California Supreme Court was denied. He then filed a habeas petition in the

California Court of Appeal, contending, inter alia, that his trial counsel had been

ineffective for failing to investigate two additional alibi witnesses in Phoenix, Lee

Cole and a woman named “Maggie.” The California Court of Appeal denied the

petition, holding that Brewer had “failed to meet his burden of showing that but for

counsel’s alleged errors, the outcome of the trial would have been different.” The

California Supreme Court denied Brewer’s petition for review. Brewer then filed a

federal habeas petition. At a status conference in 2008, Brewer’s counsel stated he

had recently located one witness, Lee Cole, but not “the other woman.” By 2009

(seven years after the robbery and five years after the trial), both witnesses had

been located. The district court held an evidentiary hearing on Brewer’s

ineffective assistance of counsel claim. Lee Cole and Maggie Thiesen testified as

to what they would have said at Brewer’s trial. The district court granted the

petition in part. The state appealed.

B.    Analysis

      1.     AEDPA Standard of Review

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

a federal court may grant habeas relief on a claim “adjudicated on the merits” by a

state court only if the state court decision “was contrary to, or involved an




                                           3                                     10-55793
unreasonable application of, clearly established Federal law, as determined by the

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

      A state court decides an issue “on the merits” when it resolves that issue

“based on the substance of the claim advanced, rather than on a procedural, or

other, ground.” Lambert, 393 F.3d at 969 (citation omitted). When a federal claim

has been presented to a state court, there is a presumption the state court

adjudicated the claim on the merits, in the absence of an indication to the contrary.

Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). The district court erred in

concluding the AEDPA standard of review does not apply. See id.

      The California courts’ decisions in this case were on the merits. The

California Court of Appeals stated:

      With respect to his claim of ineffective assistance of trial counsel,
      petitioner has failed to meet his burden of showing that but for
      counsel’s alleged errors, the outcome of the trial would have been
      different. Strickland v. Washington, 466 U.S. 668, 693-94 (1984);
      People v. Fosselman, 33 Cal.3d 572, 584 (1983).

      We reject Brewer’s contention that he has presented a claim where “new

evidence supporting a claim adjudicated on the merits gives rise to an altogether

different claim.” Cullen v. Pinholster, 131 S. Ct. 1388, 1417 (2011) (Sotomayor,

J., dissenting). In his petition to the California Court of Appeal, Brewer alleged

that counsel “failed to investigate or to ask Mr. Jones whether there were other

witnesses that could corroborate his testimony and failed to call any other



                                           4                                   10-55793
witnesses besides Mr. Jones at trial to substantiate petitioner’s alibi,” citing Jones’s

declaration, in which Jones surmised what two potential alibi witnesses might have

said had they been called to testify. Brewer’s petition to the California Supreme

Court raised the identical allegations. The California courts reviewed the

substantive details of Brewer’s ineffective assistance claim as presented, and

denied it on the merits. Brewer presented the same ineffective assistance claim,

not a different claim, in his federal habeas proceeding. Accordingly, the AEDPA’s

deferential standard of review applies. Harrington, 131 S. Ct. at 785-86; Lambert

393 F.3d at 969. The AEDPA standard is “highly deferential” and “demands that

state-court decisions be given the benefit of the doubt.” Pinholster, 131 S. Ct. at

1398 (internal quotation marks omitted).

      2.     Ineffective Assistance under Strickland

      The parties contend, and we agree, that the clearly established federal law

applicable here is Strickland. Under the Strickland test, Brewer must establish: (1)

“that counsel’s representation fell below an objective standard of reasonableness,”

Strickland, 466 U.S. at 688; and (2) “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different,” id. at 694. “The pivotal question is whether the state court’s application

of the Strickland standard was unreasonable.” Harrington, 131 S. Ct. at 785;




                                            5                                    10-55793
Knowles, 129 S. Ct. at 1420 (“the doubly deferential judicial review” applies to a

Strickland claim evaluated under 28 U.S.C. § 2254(d)(1)).

             a.     Deficient Performance

      Under Strickland’s first prong, Brewer must establish that counsel’s

performance was “deficient.” Knowles, 129 S. Ct. at 1419. Courts apply “a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 688. Brewer asserts that he

established counsel’s performance was constitutionally deficient for failure to

investigate two additional alibi witnesses.

      Our review is confined to the record before the state courts. Pinholster, 131

S. Ct. at 1398; Stokley v. Ryan, 659 F.3d 802, 807-808 (9th Cir. 2011). The district

court erred in considering additional evidence in its review under § 2254(d)(1).

See Pinholster, 131 S. Ct. at 1400 (“If a claim has been adjudicated on the merits

by a state court, a federal habeas petitioner must overcome the limitation of §

2254(d)(1) on the record that was before the state court.”).

      In his state court habeas proceeding, Brewer submitted only the declaration

of his alibi witness at trial, Adam Jones, who made the following statements about

the two additional witnesses:

             9) The first witness that could have corroborated Petitioner’s
      alibi aside from myself at trial was Lee Cole. Lee lives in Phoenix,
      Arizona. He is a friend of Petitioner & in whose home we stayed at



                                          6                                       10-55793
      while we were in Phoenix, Arizona from April 15, 2002 to April 18,
      2002.

             10) The second witness that could have corroborated
      Petitioner’s alibi aside from myself at trial was a woman named
      Maggie. I do not know Maggie’s last name but I do know that Lee
      Cole personally knows Maggie and has her first and last name and
      also how to contact her. Maggie also lives in Phoenix, Arizona and is
      the woman that Petitioner met up with and spent the night with on
      April 16, 2002, like I testified to at trial.

      At the time Jones presented his declaration in the state court habeas

proceeding, the two alibi witnesses had yet to be located, no last name of “Maggie”

was included, and no declarations from these witnesses were submitted.

Accordingly, the California court could reasonably reject Brewer’s ineffective

assistance claim, and Brewer therefore has failed to establish “there was no

reasonable basis” for the state court’s decision. See Pinholster, 131 S. Ct. at 1402-

03; id. at n. 12, citing People v. Duvall, 9 Cal. 4th 464, 474 (1995) (under

California law, the court generally assumes the allegations in the petition to be

true, but does not accept wholly conclusory allegations).

      Assuming, as the district court did, that our review was not limited to the

record before the state courts, and includes the district court testimony of the two

additional alibi witnesses, the evidence remains insufficient to establish deficient

performance because the two witnesses provide inconsistent testimony. The

witnesses contradict each other, as well as the testimony of Adam Jones, Brewer’s

trial witnesses. Adam Jones testified at trial that Brewer spent one night, April 16,

                                           7                                    10-55793
2002, with a woman named Maggie. Lee Cole testified in the district court’s

evidentiary hearing that Brewer spent one night with Maggie. Maggie Thiesen

testified in the district court’s evidentiary hearing that she spent two nights with

Brewer. Maggie Thiesen also admitted she was not positive of the date she met

Brewer. Cole, described by Adam Jones in his declaration as a “friend” of Brewer,

testified he met Brewer only once, and, “I can’t say that I really know him at all.”

Had trial counsel presented these witnesses, their testimony could very well have

undermined rather than assisted Brewer’s defense.

             b.     Prejudice under Strickland

      The district court also erroneously concluded that counsel’s alleged

deficiencies were prejudicial under the second prong of the Strickland test. In

assessing prejudice, the question is not whether it is possible a reasonable doubt

might have been established if counsel acted differently, but whether it is

reasonably likely the result would be different. Harrington, 131 S. Ct. at 791-92.

“The likelihood of a different result must be substantial, not just conceivable.” Id.

at 792.

      Here, two credit union employees positively identified Brewer as the man

who committed the robbery. The security video and associated still photographs

showed a robber who looked very much like Brewer. Brewer’s one alibi witness


                                           8                                     10-55793
testified that Brewer was in Phoenix at the time of the robbery. It was not an

unreasonable application of Strickland for the California courts to conclude that

there was no reasonable likelihood the jury would reach a different outcome. See

id.

      In summary, the California state courts’ adjudication of Brewer’s ineffective

assistance claim was not “contrary to, or involved an unreasonable application of,

clearly established Federal law as determined by the Supreme Court,” under

§ 2254(d)(1). We further observe that nothing in the record suggests the

performance of Brewer’s counsel, Los Angeles County Deputy Public Defenders

Justine Esack and Karen Richardson, was in any way constitutionally deficient.

      Accordingly, we reverse the judgment of the district court and remand with

instructions to deny Brewer’s petition for a writ of habeas corpus.

      Brewer’s motion to strike portions of the reply brief is denied as moot.

      REVERSED and REMANDED.




                                          9                                      10-55793
