                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 7 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VICTOR RAYMOND ROBLERO,                         No.    17-55039

                Petitioner-Appellant,           D.C. No.
                                                5:14-cv-01110-PA-JEM
 v.

SCOTT KERNAN,                                   MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                          Submitted December 4, 2018**
                              Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,*** District
Judge.

      A California jury convicted Appellant Victor Roblero of molesting his

stepdaughter (Jane Doe No. 1) and her friend (Jane Doe No. 2) over the course of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
several years. At trial, the jury heard from both victims, and viewed a police

interview in which Roblero admitted that he orally copulated and digitally

penetrated Jane Doe No. 2 when she was less than eighteen years old. While

Roblero’s defense counsel conceded Roblero’s guilt on the oral sex and sexual

penetration charges, defense counsel urged the jury to find Roblero not guilty of

the remaining six counts of lewd acts on a child, while asking it to convict only on

the lesser-included offenses. The jury, however, found Roblero guilty on all

counts, as charged. Roblero filed a series of state habeas petitions, which the

California Supreme Court denied without reasoning. Roblero then filed this

petition in federal court, which the district court denied.

      We review de novo a district court’s denial of a habeas petition and review

factual findings for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.

2000) (en banc). The Anti-Terrorism and Effective Death Penalty Act (AEDPA)

imposes a “highly deferential” standard for evaluating state court denials of habeas

relief. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). When a state

supreme court rejects a claim without reasoning, a habeas court must consider

arguments or theories that could have supported the state court’s decision. See

Harrington v. Richter, 562 U.S. 86, 102 (2011). Then it must ask whether fair-

minded jurists could disagree that those arguments or theories are inconsistent with

United States Supreme Court precedent. Id.


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      On appeal, Roblero argues that his defense counsel was ineffective because

counsel conceded guilt on several charges. This argument is not persuasive. It was

reasonable for defense counsel to concede Roblero’s guilt on the two less serious

felony charges to gain credibility with the jury for his defense of the more serious

felony charges. Moreover, in light of the overwhelming evidence against Roblero,

including his admissions, it is not reasonably probable that, but for defense

counsel’s concessions, Roblero would have received a different verdict.

      A successful ineffective assistance of counsel claim must establish both

deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687

(1984). To determine whether defense counsel’s representation was

constitutionally deficient, a court must find “that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. A court may assume

prejudice if “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984).

      Here, the California Supreme Court did not unreasonably apply U.S.

Supreme Court precedent—under either Strickland or Cronic—when it denied

Roblero’s habeas petition. The California Supreme Court could have reasonably

determined that defense counsel’s concessions were not the functional equivalent

of a guilty plea or a failure of adversarial testing. For example, the state court could

have determined that counsel was trying to gain the credibility of the jury by


                                           3
strategically conceding guilt on the less serious felony charges to avoid conviction

on the more serious felony charges.

      Where the evidence of guilt on some counts is overwhelming, it may be

sound strategy for defense counsel to concede guilt on those charges and focus on

the more defensible charges, particularly if the defensible charges carry a greater

penalty. See United States v. Thomas, 417 F.3d 1053, 1058–59 (9th Cir. 2005);

United States v. Swanson, 943 F.2d 1070, 1076 (9th Cir. 1991). Therefore, as the

U.S. Supreme Court held, “counsel cannot be deemed ineffective for attempting to

impress the jury with his candor and his unwillingness to engage in ‘a useless

charade.’” Florida v. Nixon, 543 U.S. 175, 192 (2004) (quoting Cronic, 466 U.S. at

656–57 n.19).

      The majority of Roblero’s arguments in his habeas petition and on appeal

center around what defense counsel could have done differently. In other words,

Roblero is second-guessing his defense counsel’s trial tactics and strategy. This is

precisely the type of post-conviction second-guessing that Strickland forbids. See

Strickland, 466 U.S. at 689. Given that Roblero admitted to the two less serious

felony charges during his police interview, conceding guilt on these charges would

have been a reasonable strategic decision by defense counsel. Similarly, for the

remaining six counts, it was a reasonable strategic decision to ask the jury to

convict on the lesser-included offenses. The record establishes that defense counsel


                                          4
was likely trying to gain credibility with the jury by focusing on the defensible

charges. It is reasonable that the California Supreme Court saw it this way, too.

Lastly, because there is no clearly established U.S. Supreme Court precedent

holding that defense counsel is necessarily deficient for strategically conceding

guilt on a subset of charges in a noncapital case, defense counsel, here, was not

ineffective.

      Second, defense counsel’s concessions were not equivalent to a complete

failure in the adversarial process. See Nixon, 543 U.S. at 188. Here, throughout

trial and during closing, defense counsel meaningfully tested the prosecutor’s case

by contesting the admissibility of evidence, cross-examining witnesses, and

presenting a defense case. Furthermore, Roblero retained his right to appeal, and

did appeal his conviction twice. Defense counsel, therefore, did not fail to subject

the prosecution’s case to meaningful adversarial testing. Moreover, in view of the

overwhelming evidence against Roblero, including his admissions and victim

testimony, the California Supreme Court could also have reasonably determined

that it is not reasonably probable that, but for counsel’s concessions, Roblero

would have received a more favorable verdict.

      Accordingly, we AFFIRM the district court’s order denying habeas relief.




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