United States District Court, E.D. California
JORGE M. TRINIDAD, Petitioner,
STU SHERMAN, Respondent.
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
Jorge M. Trinidad is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. In his petition for writ of habeas
corpus, Petitioner raises the following claims for relief:
(1) ineffective assistance of counsel; (2) ineffective
assistance of counsel during the plea process; (3) the state
court’s failure to appoint counsel to investigate
Petitioner’s ineffective assistance of counsel claim in
his state habeas proceedings; and (4) that Petitioner acted
reasons discussed herein, the Court recommends denial of the
petition for writ of habeas corpus.
6, 2011, Petitioner was convicted by a jury in the Fresno
County Superior Court of first-degree murder (count 1) and
second-degree robbery (count 2). The jury found true the
special allegation that Petitioner personally used a knife
during the commission of the crime. Petitioner was sentenced
to a term of twenty-five years to life on count 1, plus a
one-year enhancement on the special allegation. The sentence
on count 2 was stayed. People v. Trinidad, No.
F062786, 2013 WL 2279434, at *1 (Cal.Ct.App. May 22, 2013).
On May 22, 2013, the California Court of Appeal, Fifth
Appellate District, affirmed the judgment. Id. at
*8. The California Supreme Court denied Petitioner’s
petition for review on August 14, 2013. (LDs 7, 8).
Petitioner filed a petition for writ of habeas corpus in the
Fresno County Superior Court. (LD 9). The petition was denied
on October 18, 2013. (LD 10). Petitioner then filed a habeas
petition in the California Court of Appeal, Fifth Appellate
District, which denied the petition without prejudice on
February 6, 2014. (LDs 11, 12). Petitioner filed another
habeas petition in the California Court of Appeal, Fifth
Appellate District, which summarily denied the petition on
June 17, 2014. (LDs 13, 14). Petitioner filed a habeas
petition in the California Supreme Court, which summarily
denied the petition on February 18, 2015. (LDs 15, 16).
March 20, 2015, Petitioner filed the instant federal petition
for writ of habeas corpus. (ECF No. 1). Respondent has filed
an answer to the petition. (ECF No. 20).
STATEMENT OF FACTS
On October 14, 2010, sometime around 6:00 a.m., Dolores
dropped off her 33-year-old cousin, Marcella, near a gas
station on the northwest corner of Winery and Kings Canyon.
Marcella was there to engage in prostitution. She walked
north toward the Big Lots store on the same corner. About 20
to 25 minutes later, Dolores received a call from Marcella,
telling her to come back and pick her up near the Big Lots
store. Dolores heard rustling sounds and thought Marcella
sounded out of breath.
When Dolores arrived, she saw Marcella on the sidewalk on the
west side of Winery, near the Big Lots store. Dolores
realized Marcella was having difficulty breathing and she saw
blood on the left side of her abdomen. Dolores got help from
passers-by who called the police.
At about 6:30 a.m., Officers Swanson and Scott arrived and
found Marcella lying on the sidewalk next to the Big Lots
store on the west side of Winery. She was covered in blood
and there was blood on the sidewalk underneath her. Another
Hispanic female was standing over her yelling. Officer
Swanson saw five to 10 stab wounds on Marcella, and he
attempted to stop the bleeding from her chest wounds.
Marcella was gurgling and gasping for air, unable to say
anything to the officers. An ambulance arrived three to five
minutes later. Marcella had surgery at the hospital, but she
did not survive.
Detective Cervantes spoke to Dolores at the scene. She said
Marcella was carrying a black fake leather purse and a black
Page Plus cell phone. When officers went to the hospital,
they learned that the purse and phone did not arrive with
Detective Valles arrived on the scene at 7:45 a.m. He
observed a bloody jacket on the sidewalk where Marcella had
lain. A blood trail led from the jacket diagonally across the
street, ending at a black T-shirt that was in the road near
the curb on the east side of Winery. The neck of the black
T-shirt had been stretched out.
Detective Serrano determined that Marcella’s cell phone
was active. It had sent a Spanish text message after Marcella
had been killed, at about 9:00 a.m., to a specific cell phone
owned by a woman in Madera. Detective Serrano visited the
woman and learned that her 15-year-old daughter, Doris, was
the primary user of the phone. Detective Serrano went to
Doris’s school and spoke to her. Doris said she had
received a text message in Spanish that morning from a male
named George or Jorge whom she had recently met in Fresno.
Doris accompanied Detective Serrano back to Fresno.
Detective Cervantes spoke to Doris at the station. He
translated the Spanish text message sent from
Marcella’s cell phone at 9:00 a.m. as follows:
“Mija [a term of endearment], what are you doing? This
is George. This will be my phone until the number is
disconnected.” At this point, the officers determined
they would use Doris to lure defendant out. At 2:08 p.m.,
while the officers were discussing the plan with Doris, she
happened to receive a call from defendant. Detective
Cervantes was able to record the call with his digital
recorder. According to the plan, Doris asked defendant where
he was and said they could meet later. Defendant said he was
in the area of Kings Canyon and Dearing, near the major cross
streets of Kings Canyon and Chestnut. Doris told him she was
going to have her oldest sister drive her to the area so they
could meet. Defendant said he would prefer for her to pick
him up on a side street because he had been involved in an
altercation and the police were looking for him. Then he
apologized and said he would have to meet her later; he had
to go to his stepbrother’s because the police were
going to get him. He explained that he had gotten into a
fight with some individuals that morning at an apartment
complex near Kings Canyon and Winery, which he called
“[T]he Wineries, ” and that he had stabbed a
female. He said the police had been investigating the case
since about 6:00 a.m., and he did not want to go out on the
street. He said the police were going to kill him.
At 4:26 p.m., defendant called again to arrange a meeting
with Doris. He said they would meet at a bus stop near Kings
Canyon and Chestnut. Then he said he would wait in the
parking stalls because he was afraid the police would be
At 4:34 p.m., defendant called Doris a third time. By now,
Doris was in the backseat of an undercover vehicle with
Detective Cervantes. Defendant told Doris that he was walking
with a friend to Kings Canyon and Chestnut. She asked him
what he was wearing. She told him she was there, but she had
passed Chestnut and was coming around. He giggled, then
stressed to her that she should hurry because he did not want
to be out on the street for long. He told her he would to
[sic] be in front of the Halloween Superstore on the
northwest corner of Kings Canyon and Chestnut. At this point,
Detective Cervantes was observing defendant and his friend.
Detective Cervantes informed undercover officers in the area.
They exited their vehicles wearing tactical vests and badges,
approached defendant, ordered him to drop the cell phone he
was holding in his right hand and lie on the ground. The cell
phone was a black Page Plus phone. The officers conducted a
pat-down search of defendant and found a folding switchblade
knife in a black nylon sheath and another cell phone, which
was later found to be inactive other than as a musical
device. They arrested defendant.
Detective Cervantes noticed that a group of people had
congregated nearby to watch the officers arresting defendant.
Detective Cervantes approached and spoke to a 16-year-old boy
who said defendant came to his apartment on Sierra Vista at
about 7:00 a.m. that morning. Defendant told him he had been
involved in a fight and had stabbed a person. Defendant had
some lottery tickets with him. Defendant cleaned a bloody
knife and changed into clean clothes. Detective Cervantes
showed the boy the switchblade knife taken from defendant and
the boy identified it as the bloody knife defendant had
cleaned that morning.
Detective Cervantes also spoke to a 16-year-old girl who said
she knew defendant. She said he came to her apartment on
Dearing that morning at about 9:00 a.m. She saw him using a
Page Plus cell phone and sending text messages with it. She
said defendant told her he had been involved in a fight at
about 6:00 a.m. at The Wineries apartment complex. He said a
female was trying to “get at him” and she took
At the station, Detective Cervantes interviewed
defendant’s 17-year-old friend who was with defendant
when he was arrested. The friend said he saw defendant that
afternoon at an apartment on Dearing. Defendant told him he
had been involved in a fight. The friend saw defendant
sending text messages on the black Page Plus cell phone
before he was arrested. The friend said defendant was 17
Another person, also from an apartment on Dearing, told
officers she saw defendant with two cell phones that day.
Defendant told her he had purchased the phones, but he could
not provide the name of the cell phone service provider.
Detectives interviewed defendant at the station. He initially
identified himself as 19-year-old Jesus Aburto. After he was
read his Miranda rights, he agreed to speak to the
officers. He said he was drinking with some friends at an
apartment complex on Winery, just north of the crime scene.
Around 6:00 a.m., he left and was walking south on Winery
toward the gas station when he met Marcella. He asked her for
a lighter and she said she did not have one. She asked him,
“Do you want to do some business?” Defendant took
this to mean sexual intercourse. They agreed he would pay her
$20 for sex. He paid her and they walked into an alley
perpendicular to Winery. Defendant lay down near the trash
can and Marcella faced away from him, but she got up and left
without doing what they had agreed upon. He told the officers
they would find a condom behind a U-shaped cinderblock wall
dumpster enclosure at the east end of the alley.
Defendant explained that since no sexual act had occurred, he
tried to get his $20 back from Marcella. He took his knife
out and told her, “Give me back my fucking
money.” She would not give him the money, so he grabbed
the cell phone she was talking on and he ran back toward the
apartments. As he went into the apartment complex, he
realized he did not have his wallet. He came back onto the
street and saw Marcella. She ran when she saw him, but he
caught her. She grabbed him and he did not know what to do,
so he grabbed her purse and took off running. Defendant did
not mention a stabbing.
The detectives told defendant they knew he was omitting
certain things and he needed to provide more details. He then
explained that after he realized his wallet was gone, he came
back to recover it. He realized it was in Marcella’s
purse. When he caught up to her, they struggled over the
purse as he tried to remove it from her person. They
exchanged blows. Marcella pulled his shirt off. She punched
him, and he punched her a few times and pushed her to the
ground. He had his knife out and he told her he wanted his
wallet back. She had the purse on her right side and she
would not let go of it, so he got on top of her and stabbed
her two to five times on the left side of her torso.
Defendant demonstrated this for the detectives with a few
“very, very slight, ” slow, and
“nonchalant” stabbing motions.
After stabbing her, he took the purse and ran north through
an apartment complex. On his way, an unknown male looked as
though he was going to try to swing at him, so he punched the
male in the face. Defendant jumped a fence and then went
through the purse to remove the contents. He took his wallet
and some lottery tickets from the purse. He left the purse
and the remaining contents in the back of the apartment
complex. He still had Marcella’s cell phone. Defendant
told the detectives he knew what he did was wrong, but it was
her fault, not his.
Based on defendant’s information, officers went to the
alley behind the strip mall. At the end of the alley, behind
a U-shaped cinderblock wall, they found an unused condom and
a condom wrapper in the location defendant had specified.
Officers also went to the location defendant said he left
Marcella’s purse. They found the purse with the
contents-including makeup, a compact, some condoms, a
child’s pacifier, and identification cards-strewn
Defendant took officers to a backpack hidden under a car at
the Sierra Vista apartment complex (where he had changed his
clothes that morning). The backpack contained used lottery
Defendant’s alien registration card with his picture
showed him to be 21 years old. Elementary school transcripts,
however, showed him to be only 15 years old. At this point,
Detective Cervantes did not know if defendant was 15, 17, 19,
or 21 years old. In a second interview, Detective Cervantes
inquired again. This time, defendant gave his true name and
birth date, and explained that he had the registration card
because he needed to be a certain age to work. Defendant
weighed about 150 pounds and was the appropriate size for a
Dr. Chambliss, a pathologist, conducted the autopsy on
Marcella’s body on October 15, 2010. Marcella weighed
156 pounds, and her system contained some methamphetamine,
but no alcohol. The cause of her death was a stab wound to
the chest that penetrated the heart’s left ventricle
and caused her to bleed to death within minutes. Another
chest stab wound was directed downward, penetrating the
spleen. She suffered five other wounds to the left chest area
that did not penetrate her body cavity. In addition, she
suffered wounds under her arm, on the back of her right
forearm (completely penetrating her arm), on the front of her
right forearm, on her upper left arm, and on her lower left
leg. In total, Marcella suffered 16 stab and puncture wounds.
According to Dr. Chambliss, the knife found on defendant
could have created the type of wounds on Marcella’s
In addition to the stab wounds, Dr. Chambliss found a blunt
trauma injury, an internal bruise, on the left side of
Marcella’s scalp, just above her forehead. Dr.
Chambliss saw no injuries, including defensive wounds, on
Marcella’s hands. Dr. Chambliss examined
Marcella’s jacket and sweatpants and determined that
the damage to the clothing was consistent with her stab
On cross-examination, Dr. Chambliss explained that Marcella
would have been able to engage in activity after being
wounded until her blood pressure dropped too low and/or the
blood accumulated around her heart and stopped its
functioning. The methamphetamine in her system could have
made her more excitable and aggressive, and possibly
stronger. It also could have raised her blood pressure. Dr.
Chambliss agreed that her leg wounds could have occurred
while her legs were raised, and the wound under her arm could
have occurred if she lifted her arm to attack.
Trinidad, 2013 WL 2279434, at *1-4 (footnotes
STANDARD OF REVIEW
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that he suffered
violations of his rights as guaranteed by the United States
Constitution. The challenged convictions arise out of the
Fresno County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(d).
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of the AEDPA and is therefore governed by
the AEDPA, relitigation of any claim adjudicated on the
merits in state court is barred unless a petitioner can show
that the state court’s adjudication of his 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); Davis v. Ayala, 135 S.Ct.
2187, 2198 (2015); Harrington v. Richter, 562 U.S.
86, 97-98 (2011); Williams, 529 U.S. at 413. Thus,
if a petitioner’s claim has been “adjudicated on
the merits” in state court, the “AEDPA’s
highly deferential standards” apply. Ayala,
135 S.Ct. at 2198. However, if the state court did not reach
the merits of the claim, the claim is reviewed de
novo. Cone v. Bell, 556 U.S. 449, 472 (2009).
ascertaining what is “clearly established Federal law,
” this Court must look to the “holdings, as
opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412. In
addition, the Supreme Court decision must
“‘squarely address the issue in th[e]
case’ or establish a legal principle that
‘clearly extend[s]’ to a new context to the
extent required by the Supreme Court in . . . recent
decisions”; otherwise, there is no clearly established
Federal law for purposes of review under AEDPA and the Court
must defer to the state court’s decision. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in
original) (quoting Wright v. Van Patten, 552 U.S.
120, 125, 123 (2008)).
Court determines there is clearly established Federal law
governing the issue, the Court then must consider whether the
state court’s decision was “contrary to, or
involved an unreasonable application of, [the] clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
A state court decision is “contrary to” clearly
established Supreme Court precedent if it “arrives at a
conclusion opposite to that reached by [the Supreme Court] on
a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams,
529 U.S. at 413. A state court decision involves “an
unreasonable application of clearly established Federal
law” if “there is no possibility fairminded
jurists could disagree that the state court’s decision
conflicts with [the Supreme Court’s] precedents.”
Richter, 562 U.S. at 102. That is, a petitioner
“must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
Court determines that the state court decision was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, ” and the error is
not structural, habeas relief is nonetheless unavailable
unless it is established that the error “had
substantial and injurious effect or influence” on the
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (internal quotation mark omitted) (quoting
Kotteakos v. United States, 328 U.S. 750, 776
AEDPA requires considerable deference to the state courts.
The Court looks to the last reasoned state court decision as
the basis for the state court judgment. See Brumfield v.
Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v.
Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst v.
Nunnemaker, 501 U.S. 797, 806 (1991). “When a
federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary.” Richter, 562 U.S. at 99.
Where the state court reaches a decision on the merits but
provides no reasoning to support its conclusion, a federal
habeas court independently reviews the record to determine
whether habeas corpus relief is available under §
2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th
Cir. 2013). “Independent review of the record is not
de novo review of the constitutional issue, but
rather, the only method by which we can determine whether a
silent state court decision is objectively
unreasonable.” Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003). The federal court must review the
state court record and “must determine what arguments
or theories . . . could have supported, the state
court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme] Court.”
Richter, 562 U.S. at 102.
REVIEW OF CLAIMS
Ineffective Assistance of Counsel
first and second claims for relief, Petitioner asserts
various instances of ineffective assistance of counsel.
Petitioner alleges that his trial counsel was ineffective
for: (1) failing to investigate and present evidence
regarding Petitioner’s intoxication; (2) failing to
investigate and present evidence regarding Petitioner’s
youth; (3) failing to contact and secure assistance from an
available attorney with the Mexican Consulate; (4) failing to
obtain and investigate police reports and photographs that
contained favorable information; (5) failing to investigate
and present evidence regarding Petitioner’s size and
injuries; (6) failing to identify and locate witnesses; (7)
failing to further investigate the victim’s
intoxication; (8) failing to request a continuance; (9)
failing to research and present the legal basis for defense
instructions; (10) using drugs at the time of
Petitioner’s trial; (11) cumulative deficiencies; and
(12) failing to adequately advise Petitioner during the plea
process. (ECF No. 1 at 42-68). Respondent argues that the
state court’s adjudication was not unreasonable or
contrary to Supreme Court precedent. (ECF No. 20 at 23).
raised ineffective assistance of counsel in all of his state
habeas petitions. The Fresno County Superior Court denied the
claims in a reasoned decision. (ECF No. 20 at 84-93). Both
the California Court of Appeal, Fifth Appellate District, and
the California Supreme Court summarily denied the petitions.
(LDs 14, 16). As federal courts review the last reasoned
state court opinion, the Court will “look
through” the summary denials and examine the decision
of the Fresno County Superior Court. See Brumfield,
135 S.Ct. at 2276; Ylst, 501 U.S. at 806.
clearly established federal law governing ineffective
assistance of counsel claims is Strickland v.
Washington, 466 U.S. 668 (1984), which requires a
petitioner to show that (1) “counsel’s
performance was deficient, ” and (2) “the
deficient performance prejudiced the defense.”
Id. at 687. To establish deficient performance, a
petitioner must demonstrate that “counsel’s
representation fell below an objective standard of
reasonableness” and “that counsel made errors so
serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 688, 687. Judicial scrutiny
of counsel’s performance is highly deferential. A court
indulges a “strong presumption” that
counsel’s conduct falls within the “wide
range” of reasonable professional assistance.
Id. at 687. To establish prejudice, a petitioner
must demonstrate “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. A
court “asks whether it is ‘reasonable
likely’ the result would have been different. . . . The
likelihood of a different result must be substantial, not
just conceivable.” Richter, 562 U.S. at 111-12
(citing Strickland, 466 U.S. at 696, 693).
§ 2254(d) applies, “[t]he pivotal question is
whether the state court’s application of the
Strickland standard was unreasonable. This is
different from asking whether defense counsel’s
performance fell below Strickland’s
standard.” Richter, 562 U.S. at 101. Moreover,
because Strickland articulates “a general
standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S.
111, 123 (citing Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). “The standards created by
Strickland and § 2254(d) are both ‘highly
deferential, ’ and when the two apply in tandem, review
is ‘doubly’ so.” Richter, 562 U.S.
at 105 (citations omitted). Thus, “for claims of
ineffective assistance of counsel . . . AEDPA review must be
‘doubly deferential’ in order to afford
‘both the state court and the defense attorney the
benefit of the doubt.” Woods v. Donald, 135
S.Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 134
S.Ct. 10, 13 (2013)). When this “doubly
deferential” judicial review applies, the appropriate
inquiry is “whether there is any reasonable argument
that counsel satisfied Strickland’s
deferential standard.” Richter, 562 U.S. at
Failure to Investigate and Present Evidence Regarding
asserts that trial counsel was ineffective for failing to
investigate and present evidence regarding Petitioner’s
being under the influence of alcohol and methamphetamine at
the time of the offense and how that may have affected
Petitioner’s mental state. (ECF No. 1 at 43).
Respondent argues that counsel’s performance was not
deficient and that it was not unreasonable for the state
court to find no prejudice resulted. (ECF No. 20 at 25).
denying Petitioner’s ineffective assistance claim based
on trial counsel’s failure to investigate and present
evidence regarding Petitioner’s intoxication, the
Fresno County Superior Court stated:
Petitioner alleges that his trial counsel was ineffective in
twelve ways. In order to show ineffective assistance of
counsel, Petitioner must allege facts showing that (1) his
counsel’s representation fell below an objective
standard of reasonableness, and (2) that his defense suffered
prejudice as a result. (Strickland v. Washington
(1984) 466 U.S. 668, 690-692.)
First, Petitioner alleges that his trial counsel did not
investigate Petitioner’s possible intoxication with
alcohol and methamphetamine at the time of the offense and at
the time of his interrogation by the police. However,
Petitioner fails to demonstrate what his trial counsel would
have discovered if he had investigated Petitioner’s
alleged alcohol and methamphetamine intoxication. While
Petitioner asserts that he was drinking with his
friend’s brother prior to the stabbing of the victim,
Petitioner does not establish that his friend’s brother
would have confirmed this version of events to
Petitioner’s trial counsel. Further, while Petitioner
states that he informed his counsel that he was under the
influence of methamphetamine, Petitioner does not explain how
this information would have been placed into evidence.
Petitioner does not state that he was willing to testify
about this intoxication at trial. Therefore, Petitioner has
failed to establish that he was prejudiced by his
counsel’s alleged failure to investigate his
methamphetamine and alcohol intoxication.
(ECF No. 20 at 84-85). In his subsequent habeas petitions to
the California Court of Appeal and California Supreme Court,
Petitioner declared under penalty of perjury, “I would
have been willing to testify about my intoxication at trial
if my trial attorney had advised me that it was in my best
interests to testify.” (LDs 13, 15; ECF No. 1 at 266).
In reviewing the reasonableness of the California Supreme
Court’s decision denying Petitioner’s claim, this
Court may consider Petitioner’s declaration while using
the Fresno County Superior Court’s “reasoning in
accordance with [the] usual practice of ‘looking
through’ summary denials to the last reasoned
decision.” Cannedy v. Adams, 706 F.3d 1148,
1159 n.5 (9th Cir. 2013). “Because the state court did
not decide whether . . . counsel was deficient, [the Court]
review[s] this element of [the] Strickland claim
de novo.” Porter v. McCollum, 558
U.S. 30, 39 (2009) (citing Rompilla v. Beard, 545
U.S. 374, 390 (2005)).
Strickland, the Supreme Court declared that
“counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s
judgments.” 466 U.S. at 690-91. Petitioner “must