Shane Adair Vicars v. RALPH M. DIAZ, Acting Secretary for the California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE ADAIR VICARS,
Petitioner-Appellant,
v.
RALPH M. DIAZ, Acting Secretary for
the California Department of Corrections
and Rehabilitation, Secretary, California
Department of Corrections and
Rehabilitation,
Respondent-Appellee.
No. 20-17086
D.C. No.
2:18-cv-03016-KJM-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted September 13, 2021**
San Francisco, California
Before: WALLACE, SCHROEDER, and FORREST, Circuit Judges.
FILED
SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Shane Vicars, a California state prisoner, appeals from the district court’s
denial of his 28 U.S.C. section 2254 habeas corpus petition challenging his
conviction on 13 counts of child molestation. He received a sentence of 26 years.
The district court issued a certificate of appealability on one claim of ineffective
assistance of counsel.
Vicars’ first trial ended in a hung jury, after Vicars raised a peer
contamination theory to defend against the charge he had molested five victims.
His counsel attempted to undermine the testimony of two of those victims by
arguing that one of the victims had reason to initiate a rumor campaign against
Vicars and that the charges were the product of peer contamination.
Vicars now argues that his new counsel in the second trial should have
investigated and raised the same defense. In the second trial, however, Vicars was
charged with molesting only two victims, neither of whom had reason to begin a
rumor campaign. Raising this defense in the second trial would have necessitated
calling an additional victim as a witness, thereby introducing potentially harmful
evidence of additional child molestation. The state court, therefore, held counsel
was not ineffective because counsel prepared extensively before making a
reasonable tactical decision. Counsel was not ineffective under the applicable
standards of Strickland v. Washington, 466 U.S. 668, 687 (1984).
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The district court correctly ruled that the state court’s conclusion was not an
unreasonable application of federal law or an unreasonable determination of fact as
required for granting habeas relief under federal law. See 28 U.S.C. § 2254(d).
AFFIRMED.
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