Jose Acencion Leon v. CHARLES L. RYAN and STATE OF ARIZONA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ACENCION LEON,
Petitioner - Appellant,
v.
CHARLES L. RYAN and STATE OF
ARIZONA,
Respondents - Appellees.
No. 14-15341
D.C. No. 4:11-cv-00129-BPV
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Bernardo P. Velasco, Magistrate Judge, Presiding
Submitted May 11, 2015**
San Francisco, California
Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.
Jose Leon appeals the district court’s order denying his 28 U.S.C. § 2254
petition. Leon generally asserts ineffective assistance of counsel, in that counsel
generally failed to prepare for and challenge the testimony of the state’s expert
FILED
MAY 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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witness, who testified regarding the behavior of child sexual abuse victims. We
affirm.
We review the district court’s denial of Leon’s § 2254 petition de novo.
Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). A district
court may not grant a § 2254 petition unless the state court’s adjudication of a
petitioner’s claim
(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.
28 U.S.C. § 2254(d). To show ineffective assistance of counsel, Leon must
demonstrate that (1) his counsel’s performance was deficient; and (2) counsel’s
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). We must indulge a “strong presumption of competence” on the
part of counsel. Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). Additionally,
“[t]here are countless ways to provide effective assistance in any given case.”
Strickland, 446 U.S. at 689. Because Strickland’s test is already deferential to
counsel, our review under § 2254 of the Arizona Court of Appeals—which
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expressly adopted the decision of the Arizona Superior Court—is “doubly
deferential.” Pinholster, 131 S. Ct. at 1403 (internal quotation marks omitted).
Leon contends that his counsel’s performance was deficient, because he
failed to interview the government’s expert witness and had no strategic reason for
failing to call an expert witness of his own or pursuing a different strategy on
cross-examination. “[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 446 U.S. at 690-91. Our inquiry into whether counsel’s
performance was deficient is an objective one, so we must “affirmatively entertain
the range of possible reasons . . . counsel may have had for proceeding as they
did.” Pinholster, 131 S. Ct. at 1407 (internal quotation marks omitted).
The record in this case demonstrates that the Arizona Court of Appeals’
decision was not unreasonable. While counsel did not interview the expert
witness, counsel investigated the government’s expert, reviewed similar cases in
which the expert testified, and reviewed the substance of the expert’s testimony in
those cases. At trial, counsel chose to cross-examine the expert regarding her
testimony (which was not specific to this victim) about the tendency of child
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sexual abuse victims to recant their accusations and delay their disclosure, rather
than call a rebuttal expert. In light of the strong presumption of competence, it was
not an unreasonable application of Strickland for the state court to conclude that
counsel’s chosen strategy was supported by a sufficient investigation.
Accordingly, the district court did not err in concluding that Leon failed to
demonstrate that the Arizona Court of Appeals’ determination that he did not
satisfy the first prong of Strickland was contrary to, or an unreasonable application
of, Supreme Court precedent.
Even if Leon had demonstrated that his counsel’s performance was
constitutionally deficient, he has not shown that the state court’s determination,
that he was not prejudiced thereby, was an unreasonable application of Strickland.
To determine whether Leon was prejudiced in this context, “the question is
whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.
Although the case turned on the victim’s credibility, it was not unreasonable to
conclude that, had counsel done what Leon asserts he was required to do, there was
not a reasonable probability that the jury would both refuse to credit the expert’s
testimony and reject the victim’s testimony. Accordingly, the district court did not
err in denying Leon’s petition.
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AFFIRMED.
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