Orlando Lopez v. Trent Allen

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ORLANDO LOPEZ, No. 19-16606 Petitioner-Appellant, D.C. No. v. 3:17-cv-03390- WHA TRENT ALLEN, ∗ Acting Warden of Salinas Valley State Prison, Respondent-Appellee. OPINION Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted December 7, 2021 San Francisco, California Filed September 2, 2022 Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, ** Judge. ∗ William Muniz is no longer the warden of Salinas Valley State Prison and is automatically substituted in this case by his successor, Acting Warden Trent Allen. Fed. R. Civ. P. 25(d). ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 LOPEZ V. ALLEN Opinion by Judge Choe-Groves; Dissent by Judge Graber SUMMARY *** Habeas Corpus The panel affirmed the district court’s denial of Orlando Lopez’s habeas corpus petition challenging his California conviction for multiple crimes resulting from a shooting at a backyard barbecue. Lopez raised several ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 688 (1984), and the panel applied AEDPA deference to the state habeas courts’ denial of relief. Lopez argued that trial counsel was ineffective for failing to consult, appoint, and introduce evidence at trial from an expert on firearms and firearms acoustics. The prosecution’s theory of the case was that two shooters, Paul Braden and Lopez, participated in the shooting both using shotguns. Lopez argued that an expert could have created reasonable doubt as to Lopez’s guilt by providing testimony that the different sounds described by witnesses suggested that the second shooter did not use a shotgun, which would have pointed towards Kevin Stone as the second shooter because the evidence showed that he carried a .22 caliber rifle. Taking as true that trial counsel failed to consult with an *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ V. ALLEN 3 expert at all, the panel held that even assuming that this failure fell below an objective standard of reasonableness, it did not create the necessary prejudice to warrant relief. Lopez argued that trial counsel was ineffective for failing to introduce expert testimony on the behavior of chronic methamphetamine users, which would have demonstrated that Stone was prone to impulsive and violent acts and that his testimony was unreliable. Noting that Stone’s drug addiction and criminal history were made known during the trial, the panel held that it was not objectively unreasonable for the state habeas court to conclude that trial counsel's conduct was not constitutionally deficient and that any error that might have occurred did not create sufficient prejudice to call into question the outcome of the case. Lopez argued that trial counsel was ineffective for failing to use Stone’s prior inconsistent statements to impeach Stone and Sergeant Clements. The panel held that a reasonable jurist …

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