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Demirdjian v. Gipson

United States Court of Appeals, Ninth Circuit

August 10, 2016

Michael Demirdjian, Petitioner-Appellant,
v.
Connie Gipson, Warden, Respondent-Appellee.

          Argued and Submitted May 12, 2014 Pasadena, California

         Appeal from the United States District Court for the Central District of California, D.C. No. 2:04-cv-08245-GHK-JTL George H. King, Chief District Judge, Presiding

          Mark J. Geragos (argued), Geragos & Geragos, Los Angeles, California, for Petition-Appellant.

          Jason Tran (argued), Deputy Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: John T. Noonan, Jr., Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus

         The panel affirmed the district court's judgment dismissing California state prisoner Michael Demirdjian's habeas corpus petition challenging his conviction and sentence for murdering two teenage boys with intent to inflict torture, committed when Demirdjian was 15 years old.

         Demirdjian claimed that his counsel was ineffective by failing to challenge statements by the prosecutor as either improper comments on Demirdjian's decision not to testify, in violation of Griffin v. California, 380 U.S. 609 (1965), or improper shifting of the burden of proof to the defense. Under the deferential standard required by AEDPA, the panel concluded that there is a reasonable argument that, because there was no prosecutorial error, defense counsel's decision to rebut the prosecution's comments directly rather than object at trial or on appeal was adequate, and that this strategy did not undermine the reliability of Demirdjian's conviction.

         Demirdjian also claimed that his sentence of two consecutive terms of 25 years to life violates the Eighth Amendment under Miller v. Alabama, 132 S.Ct. 2455 (2012), because it is the "functional equivalent" of a mandatory life-without-parole sentence and he was a juvenile offender. Applying the deferential AEDPA standard, the panel held that there is a reasonable argument that the sentence is constitutional because it actually allows for the possibility of parole.

         Dissenting, Judge Noonan wrote that trial counsel's performance was constitutionally deficient because he failed to object to the prosecution's improper attempts at burden shifting, multiple Griffin errors, and pleas to the jurors' passions; that this deficient performance influenced the jury's verdict; and that no reasonable argument exists to the contrary.

          OPINION

          FISHER, Circuit Judge:

         Michael Demirdjian appeals the denial of his 28 U.S.C. § 2254 habeas petition. In 2001, he was convicted of murdering two teenage boys with intent to inflict torture; he was 15 years old at the time of the crimes. During closing argument, the prosecution repeatedly commented on the defense's failure to explain key incriminating evidence or use competent evidence to support its exculpatory theories. Instead of objecting, defense counsel rebutted the comments by giving non-incriminating explanations of the evidence and reminding the jury the prosecution bore the burden of proof. Demirdjian was later sentenced to two consecutive terms of 25 years to life.

         In his habeas petition, Demirdjian claims his counsel was ineffective by failing to challenge the prosecution's statements as either improper comments on Demirdjian's decision not to testify, in violation of Griffin v. California, 380 U.S. 609, 615 (1965), or improper shifting of the burden of proof to the defense. He also claims his sentence violates the Eighth Amendment because it is the "functional equivalent" of a mandatory life-without-parole sentence, and he was a juvenile offender. The district court denied habeas relief on both claims.

         We affirm under the deferential standard required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the question is not whether we think Demirdjian received ineffective assistance or an unconstitutional sentence, but whether there is any reasonable argument to the contrary. We conclude there is. First, there is a reasonable argument that, because there was no actual prosecutorial error, defense counsel's decision to rebut the prosecution's comments directly rather than object at trial or on appeal was adequate, and this strategy did not undermine the reliability of Demirdjian's conviction. Second, there is a reasonable argument Demirdjian's sentence is constitutional because it actually allows for the possibility of parole.

         I. Background

         On the evening of Saturday, July 22, 2000, petitioner Michael Demirdjian, then 15, played basketball at a local park with 13-year-old Chris McCulloch and 14-year-old Blaine Talmo, Jr. Around 9:50 p.m., he left with the boys to go to a nearby school. The next evening, McCulloch and Talmo were found on a playground a few blocks away - dead from multiple blunt force trauma. Next to Talmo's battered head, officers found a 16-pound rock stained with both victims' blood. A 12-foot bench weighing more than 60 pounds lay across McCulloch's chest and neck. The right front pocket of Talmo's pants was pulled out, as if emptied. A trail of bloody shoe prints indicated someone had walked away from the scene to an outside sink stained with McCulloch's blood.

         Police later found traces of McCulloch's blood on Demirdjian's doorjamb. In Demirdjian's trash were Talmo's alarm clock and wallet - with some of the contents burned - and a pair of recently cleaned, but still bloody, sneakers. The discarded sneakers matched the bloody shoe prints, two dogs identified Demirdjian's scent on the 16-pound rock, and drops of Demirdjian's blood were found at the crime scene. Demirdjian had fresh cuts on his hands and knuckles and had lied when asked by Talmo's stepmother if he had seen Talmo. The state charged Demirdjian with two counts each of robbery and murder, with special circumstances for multiple murders, murder during a robbery and murder involving torture.

         Demirdjian was tried twice. At his first trial, he took the stand and testified he had witnessed 19-year-old Adam Walker, a well-known drug dealer, murder the boys, but had not himself participated in the murders. That trial resulted in a hung jury, deadlocked at 8-4 in favor of conviction after a week of deliberations. At his second trial, Demirdjian did not testify. The prosecution focused on the key physical evidence tying Demirdjian to the crime scene and implying a guilty mind. As to motive, the prosecution theorized Demirdjian and his friend Damian Kim had wanted to "jack" McCulloch and steal his money because, five days earlier, Walker had pulled a "jack move" and stolen hundreds of dollars from Demirdjian and Kim during a fake drug deal. The defense challenged the reliability of some of the prosecution's key evidence, but focused primarily on introducing circumstantial evidence that Adam Walker murdered the boys and had his friends help clean up. Specifically, the defense emphasized that Walker had scrapes and bruises on his body, and police found at his friend's home a washed rug, a blood stain initially matching the stain on Demirdjian's door (but later found not to be a match) and - in the trash - some damp clothes, gloves and a newspaper article about the crimes.

         The first prosecutor to speak at closing, Barshop, noted the prosecution's burden of proof, but repeatedly called on the defense to "explain" certain "unexplainable" evidence, such as the discarded wallet and clock, the bloody shoe prints and the blood stain at Demirdjian's home. Defense counsel, Mathews, responded with non-incriminating explanations of the evidence and stressed that the prosecution bore the burden of proof. A second prosecutor, Do, spoke on rebuttal, discrediting the defense's explanations and theory about Walker as not based on "reliable, competent evidence." Defense counsel did not object to any of the prosecutors' statements. The court later instructed the jury that Demirdjian had a constitutional right not to testify, the jury could not discuss or draw any inferences from his silence and the prosecution bore the burden of proof.

         The jury deliberated for five days and convicted Demirdjian of two counts of first-degree murder, with special circumstances for multiple murders and intentional infliction of torture. He was acquitted of robbery and special-circumstance murder during a robbery and was sentenced to two consecutive terms of life imprisonment without parole. On appeal, Demirdjian's counsel did not directly attack the prosecution's closing argument challenges to the defense on key evidence, but did argue the jury had impermissibly considered Demirdjian's silence.

         After exhausting his direct appeals, Demirdjian timely filed a state habeas petition claiming, among other things, ineffective assistance based on his counsel's failure to challenge the prosecution's closing statements as either violating Griffin or improperly shifting the burden of proof to the defense. The trial court summarily denied the petition, as did the California Court of Appeal, stating the petition "ha[d] been read and considered." The California Supreme Court denied review.

         While that petition was pending, the California Attorney General informed the trial court that Demirdjian's sentence likely violated California law because he was only 15 years old at the time of the crimes. After a new sentencing hearing, Demirdjian was resentenced to two consecutive terms of 25 years to life, making him eligible for parole after 50 years. On appeal, he argued his new sentence violated the Eighth Amendment because he was a juvenile offender. The California Court of Appeal affirmed, reasoning that no Supreme Court precedent barred his sentence, see People v. Demirdjian, 50 Cal.Rptr.3d 184, 187-88 (Ct. App. 2006), and the California Supreme Court again denied review.

         Demirdjian timely filed a federal habeas petition. After the district court dismissed the petition, we granted a certificate of appealability on two issues: whether Demirdjian's counsel was ineffective at trial and on appeal by failing to raise a claim of prosecutorial misconduct for Griffin error and improper burden shifting; and whether Demirdjian's sentence of two consecutive terms of 25 years to life constitutes cruel and unusual punishment because he was a minor at the time of the crimes. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

         II. Standard of Review

         We review de novo a district court's denial of a habeas petition. See Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Our review is governed by AEDPA, which "bars relitigation of any claim 'adjudicated on the merits' in state court" unless the state court's decision satisfies 28 U.S.C. § 2254(d)(1) or (2). Harrington v. Richter, 562 U.S. 86, 98 (2011) (quoting 28 U.S.C. § 2254(d)). AEDPA's relitigation bar applies to both Demirdjian's summarily denied ineffective assistance claim, see id. at 99-100, and his Eighth Amendment claim, see id. at 98. The California Court of Appeal's decision on each claim is the "relevant state-court decision" for purposes of § 2254(d). Murray, 745 F.3d at 996. Accordingly, for each of Demirdjian's claims, we cannot grant habeas relief unless the California Court of Appeal's decision on that claim was "contrary to, or involved an unreasonable application of" clearly established Supreme Court authority. 28 U.S.C. § 2254(d)(1).[1]

         This standard is "difficult to meet." Richter, 562 U.S. at 102. We must "determine what arguments or theories supported or" - for Demirdjian's summarily denied ineffective assistance claim - "could have supported the state court's decision" and "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." Id. (emphasis added). We can grant habeas relief only where the state court's decision is "so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Id. at 103.

         It is "all the more difficult" to satisfy § 2254(d)(1) where, as here, the petitioner raises an ineffective assistance claim. Id. at 105. Even on de novo review, the standard for showing ineffective assistance is "highly deferential." Strickland v. Washington, 466 U.S. 668, 689 (1984). When we evaluate an ineffective assistance claim under § 2254(d)(1), our review is "doubly deferential." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). If "there is any reasonable argument that counsel satisfied Strickland's deferential standard, " we must deny habeas relief. Richter, 562 U.S. at 105.

         III. Ineffective Assistance Claim

         Strickland provides the clearly established law governing Demirdjian's ineffective assistance claim. See Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (evaluating an ineffective assistance claim under AEDPA using Strickland's two-pronged test). In Strickland, the Supreme Court made clear "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686. The Court then established a two-pronged test for meeting that standard: an individual must show "counsel's performance was deficient" and "the deficient performance prejudiced the defense." Id. at 687. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). We hold there is a reasonable argument Demirdjian has failed to do so here.

         A. Deficient Performance

         We first consider whether the California Court of Appeal reasonably could have concluded defense counsel's performance was not deficient. Under Strickland's first prong, an attorney's representation is deficient if it "fell below an objective standard of reasonableness, " as seen "from counsel's perspective at the time." 466 U.S. at 688, 689. Because "it is all too easy" for courts to second guess errors in hindsight, id. at 689, Strickland mandates a "strong presumption" that counsel acted "for tactical reasons rather than through sheer neglect, " Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). To overcome this strong presumption, Demirdjian must show counsel's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

         Demirdjian contends his counsel performed deficiently at trial and on appeal by failing to challenge some of the statements the prosecution made at closing. Before we can assess that performance, though, we must determine "whether the prosecutor's remarks constituted objectionable misconduct." Zapata v. Vasquez, 788 F.3d 1106, 1112 (9th Cir. 2015). In making that determination, we are mindful that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000). AEDPA thus prohibits us from treating a prosecutorial statement as error if "there is any reasonable argument" to the contrary. Richter, 562 U.S. at 105.[2] Because there is a reasonable argument none of the statements was error, we hold the California Court of Appeal reasonably could have concluded counsel's performance was not deficient.

         1. Alleged Griffin Errors

         Demirdjian has not shown the prosecution committed Griffin error beyond any possibility for fairminded disagreement. Griffin prohibits "comment by the prosecution on the accused's silence." 380 U.S. at 615. We have distinguished, however, between permissible "comments about the lack of explanation provided by the defense" and impermissible "comments about the lack of explanation furnished by the defendant." United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994). A prosecutor's remark thus can "call attention to the defendant's failure to present exculpatory evidence, " id., so long as it is not "of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify, " Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).

         The nearly two dozen Griffin errors alleged here fall into three main groups. The first group, by far the largest, consists of statements asking defense counsel Mathews to explain certain "unexplainable" evidence. These statements followed the same pattern. The first prosecutor, Barshop, highlighted a piece of incriminating evidence - the cuts on Demirdjian's hands, the bloody shoe prints that matched the blood-stained sneakers in Demirdjian's trash, the stain of McCulloch's blood on Demirdjian's doorjamb and the discarded wallet and clock - and offered the prosecution's explanation. Barshop then expressly asked defense counsel - not Demirdjian - to "explain" the evidence in a non-incriminating way.[3] Defense counsel Mathews responded on rebuttal by offering non-incriminating explanations of this evidence. The second prosecutor, Do, then criticized the defense's explanations as not based on "reliable, competent evidence."[4]

         There is a reasonable argument none of these remarks violated Griffin. No statement directly "comment[ed] . . . on [Demirjian]'s silence." Griffin, 380 U.S. at 615. And we have upheld similar comments as merely calling attention to the defense's failure to explain incriminating evidence or introduce exculpatory evidence. See, e.g., Mayans, 17 F.3d at 1179, 1186 ("[T]here is no evidence to contradict [the incriminatory nature of the defendant's interaction]."); United States v. Sehnal, 930 F.2d 1420, 1423, 1425 (9th Cir. 1991) ("[A]sk [defense counsel] if he's explaining to you why it is that none of these monies found their way into the corporate bank account."); United States v. Wasserteil, 641 F.2d 704, 709 (9th Cir. 1981) ("I asked all the defendants . . . to please explain to you how this legitimate business transaction worked . . . . Did you hear an explanation from them?").

         The dissent argues these statements were nevertheless Griffin error because Demirdjian was the "sole person who could provide information" on the prosecution's questions. Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir. 2010). As defense counsel's rebuttal arguments demonstrated, however, Demirdjian was not necessarily the only source of explanation available to the defense.[5] Regardless, such comments are impermissible only where there are "very clear signals that the defendant himself, rather than the defense generally, was being discussed." Mayans, 17 F.3d at 1185; see Sehnal, 930 F.2d at 1424 (prosecutor improperly used the rhetorical tag "ask him" to refer to the defendant); Lincoln, 807 F.2d at 809 & n.1 (prosecutor improperly said the defendant was the "only . . . person who can tell us"); United States v. Sigal, 572 F.2d 1320, 1322-23 & n.1 (9th Cir. 1978) (prosecutor improperly said "the defendants did not deny" heading up part of the conspiracy). Here, the prosecutors' focus on the defense's failure to introduce "competent, admissible evidence" arguably was not a very clear signal that Demirdjian was being discussed. See, e.g., Rhoades, 598 F.3d at 511 (holding that the statement, "If there was evidence out there that would disassociate this gun from [the defendant], we'd have heard it, " was not Griffin error because a "natural reading" was "there was no meaningful challenge to the government's evidence").

         The second group of statements came from Do's rebuttal closing, where she commented on evidence indicating Demirdjian had a guilty mind. Do asked counsel to explain why the contents of Talmo's wallet were burned and why Demirdjian had lied to Talmo's stepmother about whether he had seen Talmo:

What Mr. Mathews has given is alternative facts. . . .
How does he explain the fact that the contents [of Talmo's wallet] are burned, and ripped-out, and thrown out with his bloody shoes? He hasn't. . . . Has he given you any explanation for why Michael Demirdjian is destroying evidence? Any explanation for why Michael Demirdjian is concealing evidence?
. . . .
Now, Mr. Mathews wants you to believe that there's no way Michael Demirdjian would harm these two boys because they're his friends. Just think about it. . . .
[Demirdjian] looks at [Talmo's stepmother] and he tells her, "I don't know where they are. I haven't seen them. I'm expecting a phone call."
How do you explain that? He certainly was not Chris McCulloch and Blaine Talmo's friends [sic].

(Emphasis added.) Although on de novo review this would be a closer case, there is at least a reasonable argument these statements merely commented on the defense's "failure to present exculpatory evidence." Mayans, 17 F.3d at 1185.

         Again, none directly "comment[ed] . . . on the accused's silence." Griffin, 380 U.S. at 615. The first statement, which Do expressly addressed to defense counsel, arguably did not contain "very clear signals" she was referring to Demirdjian in particular. Mayans, 17 F.3d at 1185. At one point, Do used the pronoun "he" to refer to both Mathews and Demirdjian, but the referents are clear enough from context that the comment need not have "naturally and necessarily" called for an explanation from Demirdjian himself. Lincoln, 807 F.2d at 809 (emphasis added). For the other two statements, Do was not necessarily asking the jury to "treat the defendant's silence as substantive evidence of guilt, " United States v. Robinson, 485 U.S. 25, 32 (1988) (quoting Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)), but could have been permissibly using his earlier lies to discredit the theory that he was friends with the victims.[6]

         In the final group of statements, Do directly addressed the defense's theory that Adam Walker was the murderer. At trial, defense counsel had presented only circumstantial evidence to show Walker was the murderer. During closing, however, Mathews suggested one of Walker's friends, Greg Furnish, had seen Walker at the crime scene: "There was one witness to the murders, " Mathews told the jury, "and it was not Michael Demirdjian."[7] Mathews also twice suggested Demirdjian "saw Adam Walker" at the crime scene - the second time over the prosecution's objection. Though recognizing defense counsel's remarks were "error, " the trial court ruled that, to avoid any Griffin error in response, the prosecution could not "comment" on what Demirdjian saw, but was "free to comment on" how the defense's theory lay "outside any evidence that has been received in this trial." On rebuttal, Prosecutor Do told the jury, "You've heard no testimony, no evidence from this witness stand, ...


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