Everett Lee Gholston v. RON BARNES, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVERETT LEE GHOLSTON,
Petitioner-Appellant,
v.
RON BARNES, Warden,
Respondent-Appellee.
No. 16-55428
D.C. No. 5:13-cv-00283-DDP-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted August 6, 2018**
Pasadena, California
Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.
Everett Lee Gholston, a California state prisoner, challenges the denial of his
28 U.S.C. § 2254 habeas petition. Reviewing the denial of his petition de novo,
Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), we affirm.
* 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).
FILED
AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Gholston first contends that his trial counsel rendered ineffective assistance
by failing to object to the exclusion of a witness statement on due process grounds
and failing to call two witnesses to testify that they did not see Gholston with a gun
during one of the shootings giving rise to his underlying conviction.
Gholston’s petition is subject to the Antiterrorism and Effective Death Penalty
Act of 1996; therefore, our review of this ineffective assistance claim is “doubly
deferential.” See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The excluded
statement and omitted testimony on which Gholston relies were not fully
exculpatory and, for the most part, simply indicated the witnesses did not see
Gholston with a gun because they were running away from the shooting. The
California Court of Appeal’s determination that Gholston failed to establish
prejudice due to the equivocal nature of this evidence compared to the weight of
evidence at trial was not an unreasonable application of the Strickland v.
Washington, 466 U.S. 668 (1984), standard. See Harrington v. Richter, 562 U.S.
86, 102 (2011).
Gholston also contends that the California Court of Appeal’s rejection of his
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), was based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). The California
Court of Appeal undertook a comparative juror analysis and evaluated the totality of
the circumstances when considering Gholston’s contention that the State

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impermissibly exercised peremptory challenges to strike prospective jurors E.H. and
P.B. on the basis of their race. Although reasonable minds certainly could doubt the
veracity of the prosecutor’s explanations for the challenges at issue, we cannot say
that, on this record, the state court “had no permissible alternative but to reject the
prosecutor’s race-neutral justifications and conclude [Gholston] had shown a Batson
violation.” See Rice v. Collins, 546 U.S. 333, 341 (2006).
AFFIRMED.

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