                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 15 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT B. STANFORD III,                           No.   15-16652

              Petitioner-Appellant,               D.C. No. 2:14-cv-00175-JAT

 v.
                                                  MEMORANDUM*
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                       Argued and Submitted March 15, 2017
                            San Francisco, California

Before: WARDLAW, GOULD, and CALLAHAN, Circuit Judges.

      In 2008, an Arizona jury convicted petitioner Robert Stanford of second-

degree murder. At trial, Stanford admitted to shooting the victim but claimed he

acted in self-defense. The state trial court sentenced Stanford to 18 years in state



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prison. Following unsuccessful direct and post-conviction appeals, Stanford

petitioned for a writ of habeas corpus in the United States District Court for the

District of Arizona under 28 U.S.C. § 2254, claiming ineffective assistance of his

trial counsel in violation of Strickland v. Washington, 466 U.S. 668 (1984). The

district court denied Stanford’s petition, and Stanford appealed. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review the denial of a petition for a writ of habeas corpus de novo.

Brodit v. Cambra, 350 F.3d 985, 988 (9th Cir. 2003). Our review of a habeas

petition pertaining to a state court criminal conviction is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §

2254. Under AEDPA, we review the last reasoned state court decision, and we

may grant a habeas petition only if the state court’s decision “(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 of the United States;

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.” Woods v.

Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014) (quoting 28 U.S.C. § 2254(d)).

      To demonstrate ineffective assistance of counsel, a petitioner must show that

(1) counsel’s performance was deficient, and (2) counsel’s deficient performance


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prejudiced the petitioner. Strickland, 466 U.S. at 687. Judicial review of claims of

ineffective assistance of counsel under AEDPA is “doubly deferential.”

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). When reviewing a

Strickland claim under AEDPA, the question is “whether there is a reasonable

argument that counsel satisfied Strickland’s deferential standard, such that the state

court’s rejection of the [ineffective assistance of counsel] claim was not an

unreasonable application of Strickland.” Murray v. Schriro, 746 F.3d 418, 465–66

(9th Cir. 2014) (internal quotation marks omitted).

      Stanford’s Strickland claim rests upon his trial counsel’s failure to call to

testify or formally interview the alleged sole eyewitness to the shooting, Sheikh

Ajamu. According to Ajamu’s post-trial affidavit—written nearly four years after

the shooting—Ajamu’s testimony would have corroborated Stanford’s version of

events and supported his claim that he acted in self-defense. Email exchanges

between Stanford’s trial counsel and his habeas counsel indicate that trial counsel

spoke with Ajamu on three occasions, but concluded that Ajamu’s testimony

would be more harmful than helpful.

      To prove deficient performance, the complaining defendant “must show that

counsel’s representation fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. “An attorney need not pursue an investigation that


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would be fruitless, much less one that might be harmful to the defense.”

Harrington v. Richter, 562 U.S. 86, 108 (2011).

      Here, the Arizona Court of Appeals reasonably concluded that Stanford’s

trial counsel made a tactical decision not to further investigate Ajamu’s claims,

because Ajamu’s testimony might have further highlighted the inconsistencies in

Stanford’s ever-changing version of events. Stanford’s account of what occurred

differed in many respects from his initial interview with police to his trial

testimony. Further, Stanford’s trial counsel stated that when Ajamu initially

contacted him his account differed from Stanford’s story at the time, and the

information Ajamu offered did not exculpate Stanford. See Strickland, 466 U.S. at

689 (an attorney’s decision must be “evaluate[d] . . . from counsel’s perspective at

the time” of the decision, “eliminat[ing] the distorting effects of hindsight”).

Therefore, Stanford has failed to show that the Arizona Court of Appeals was

unreasonable in concluding that his trial counsel’s performance was not deficient

under Strickland.

      Even if Stanford could show deficient performance, his Strickland claim

would still fail under the prejudice prong. Stanford must show that but for

counsel’s performance, it is “reasonably likely the result would have been

different.” Richter, 562 U.S. at 111 (internal quotation marks omitted).


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      If Ajamu had testified, his testimony likely would not have overcome the

government’s physical evidence inculpating Stanford. “[I]neffective assistance

claims based on a duty to investigate must be considered in light of the strength of

the government’s case.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.

1986). The government’s evidence refuted much of Stanford’s testimony, which

Ajamu’s testimony would likely have purportedly supported. Particularly, Ajamu

would have testified that: (1) the victim jumped onto the car; (2) the victim

attacked Stanford through the window; (3) Stanford and the victim began tugging

at the gun; and (4) the gun discharged multiple times during the struggle. At trial,

the government showed that: (1) no damage was found on the vehicle, suggesting

no one had jumped on it; (2) no evidence was found on the car or on the victim’s

body to indicate the victim was in close proximity when he was shot; and (3) had

the victim been holding the gun as described when it was fired, the gun would not

have been able to fire again, because the shell would not have dispensed and the

chamber would not have reloaded.

      Thus, even had Ajamu testified as he claimed he would, his testimony would

have been refuted by the government’s physical evidence. Because it is not

“reasonably likely the result would have been different” had Ajamu testified, the

Arizona Court of Appeals was not unreasonable in concluding that Stanford failed


                                          5
to show ineffective assistance of counsel under Strickland. Richter, 562 U.S. at

111 (internal quotation marks omitted).

      The district court’s denial of Stanford’s habeas petition is AFFIRMED.




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