Guadalupe Gonzalez v. Mark Nooth

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUADALUPE GONZALEZ,
Petitioner-Appellant,
v.
MARK NOOTH,
Respondent-Appellee.
No. 17-35091
D.C. No. 2:15-cv-02126-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 16, 2018
Portland, Oregon
Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.
Guadalupe Gonzalez appeals the district court’s denial of his petition for
writ of habeas corpus under 28 U.S.C. § 2254. Because the parties are familiar
with the facts, we do not recite them here. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 28 U.S.C. § 2253, and we affirm.
We review de novo the district court’s denial of a habeas petition, and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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factual findings are reviewed for clear error. See Runningeagle v. Ryan, 686 F.3d
758, 766 (9th Cir. 2012). Because Gonzalez filed his habeas petition after April
24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) apply. Under AEDPA, federal habeas relief may not be granted
with respect to a judgment of a state court unless the adjudication of the 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); see also Harrington v. Richter, 562
U.S. 86, 100 (2011). “[A] state court decision is not unreasonable if ‘fairminded
jurists could disagree on its correctness.’” Davis v. Ayala, 135 S. Ct. 2187, 2199
(2015) (internal alteration omitted) (quoting Richter, 562 U.S. at 101)).
Gonzalez argues that his trial counsel was ineffective by failing to object to
the sentencing judge’s consideration of an alleged expert’s opinions on child
molesters that were not in the record. To prevail on his claim, Gonzalez must
show that counsel’s performance was deficient and prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a petitioner must
show 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.

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Even assuming that counsel’s performance was deficient, Gonzalez has
failed to show that there is a “reasonable probability” that but for the sentencing
judge’s consideration of the alleged expert’s opinions, the outcome of the
proceeding would have been different. Id. The record does not indicate that the
sentencing judge relied on the alleged expert’s opinions as the basis for the
sentence. Rather, the sentencing judge relied on the frequency of Gonzalez’s
sexual assault of his granddaughter and the fact that Gonzalez sexually assaulted
several other female minors within his family. The sentencing judge also
acknowledged that, although he was inclined to impose the maximum sentence of
225 months, he would instead adopt the prosecutor’s recommendation of 150
months. Under our “doubly deferential” review, Knowles v. Mirzayance, 556 U.S.
111, 123 (2009), the sentencing judge’s determination that Gonzalez failed to
establish prejudice was not an unreasonable application of Strickland. The district
court properly denied Gonzalez’s petition for writ of habeas corpus.
AFFIRMED.

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