United States v. 2020-11-19 | 18-15708 | EDDIE VARGAS, SR. V. CRAIG KOENIG | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDDIE M. VARGAS, Sr.,

Petitioner-Appellant,

v.

CRAIG KOENIG, Acting Warden,

Respondent-Appellee.

No. 18-15708

D.C. No. 5:03-cv-02930-EJD

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Submitted November 16, 2020
**

San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

Eddie M. Vargas, Sr. was convicted in California of first-degree murder,
conspiracy, and possession of a concealable firearm by a convicted felon in 1997.
His 28 U.S.C. § 2254 petition asserts ineffective assistance because his trial counsel
opposed severing Vargas’s trial from that of his codefendants. Vargas also claims

*
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

NOV 19 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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he was denied due process when the prosecution introduced evidence about two
attempted murders not listed in the indictment as overt acts of the conspiracy. The
district court denied the petition, and this Court granted a certificate of appealability.
We affirm.
1. Because this case is governed by The Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Pub. L. 104–132, 110 Stat. 1214 (1996), our review of
Vargas’s ineffective assistance claim is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). We ask only whether the state court “could
have reasonably concluded” that Vargas’s counsel was not constitutionally deficient.
See Cullen v. Pinholster, 563 U.S. 170, 194 (2011) (citing Strickland v. Washington,
466 U.S. 668, 691 (1984)). Strickland imposes a “strong presumption that counsel’s
performance was within the wide range of reasonable professional assistance [that]
might be considered sound trial strategy.” Carrera v. Ayers, 670 F.3d 938, 943 (9th
Cir. 2010) (cleaned up).
2. The state court reasonably concluded that counsel’s opposition to severance
did not fall below an “objective standard of reasonableness.” Strickland, 466 U.S.
at 688. Vargas claims that counsel was ineffective because, unlike him, his
codefendants faced possible death sentences, and the Supreme Court has purportedly
placed the defense bar on notice that death qualification of a jury harms a client not
facing the death penalty. However, the cases on which Vargas relies do not establish

3
that principle. In Lockhart v. McCree, 476 U.S. 162 (1986), the Court simply held
that death-qualifying a jury during the guilt phase of a capital trial does not violate
the Sixth Amendment. And, Buchanan v. Kentucky, 483 U.S. 402 (1987), held that
use of a death-qualified jury did not deprive a homicide defendant of his right to an
impartial jury when only his codefendant faced the death penalty.
Counsel opposed severance because he believed Vargas would be “viewed in
a better light by the jury” compared to his more culpable codefendants who faced
the death penalty. Vargas, after hearing counsel’s reasoning, consented to that
decision. This “strategic choice[ ] made after thorough investigation of law and facts
relevant to plausible options [is] virtually unchallengeable.” Strickland, 466 U.S. at
690.
1

3. The district court also did not err in finding that Vargas was not deprived of
due process when the prosecution presented evidence of the attempted murders of
two people not named in the indictment as overt acts in furtherance of the conspiracy.
Under California law, identifying the intended victim of a conspiracy to commit
murder is proof of the “means” by which the conspiracy was to be achieved, not an
“element” of the crime. People v. Vargas, 91 Cal. App. 4th 506, 563 (2001).
AEDPA permits relief only when the Supreme Court has established a “specific

1
Because Vargas’s Strickland claim fails at the first step, we do not address
Strickland’s “prejudice” requirement. See Strickland, 466 U.S. at 687.

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rule” that “clearly establish[es] the legal proposition needed to grant . . . habeas
relief.” Lopez v. Smith, 574 U.S. 1, 6 (2014); 28 U.S.C. § 2254(d)(1). Vargas relies
on Cole v. Arkansas, 333 U.S. 196 (1948), and In re Oliver, 333 U.S. 257 (1948).
But, those cases “stand for nothing more than the general proposition that a
defendant must have adequate notice of the charges against him.” Lopez, 574 U.S.
at 5–6.
AFFIRMED.