Gary McKinley v. Robert Legrand, 670 F. App'x 610

Gary McKinley, a Nevada state prisoner, appealed the district court’s dismissal of his petition for a federal writ of habeas corpus challenging convictions for sexual assault.
McKinley raised ineffective-assistance-of-counsel claims based on (1) counsel’s failure to appeal denial of a state-court motion for a new trial tied to an allegedly biased juror/foreperson, and (2) counsel’s failure to insist the trial judge view pornographic video evidence before admitting it.
The Nevada Supreme Court applied Strickland in rejecting both ineffective-assistance claims; the federal district court dismissed McKinley’s habeas petition, and McKinley appealed to the Ninth Circuit.
The Ninth Circuit reviewed the district court de novo and assumed, without deciding, that the right to counsel extended to the context of appealing the denial of a motion for new trial.
The Nevada Supreme Court’s factual finding that the foreperson did not intentionally conceal prejudicial information, based in part on demeanor and the foreperson’s own statement of non-recollection, was deemed reasonable.
The Ninth Circuit held that counsel’s strategy regarding limiting rather than fully precluding the videos did not constitute constitutionally deficient performance under Strickland.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not appealing denial of motion for new trial based on juror/foreperson concealing information	McKinley: counsel should have appealed; foreperson concealed prejudicial info warranting new trial	State: Nevada courts found no intentional concealment; no prejudice from counsel’s omission	Court: Nevada Supreme Court reasonably applied Strickland; no prejudice shown; claim fails
Whether counsel was ineffective for not insisting trial judge view pornographic videos before admissibility ruling	McKinley: counsel should have insisted judge view videos to fully exclude them	State: counsel limited admission to a summary; performance not deficient even if preclusion was not total	Court: Counsel’s performance was not unreasonably deficient; no habeas relief

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficient performance and prejudice)
Miller-El v. Cockrell, 537 U.S. 322 (review deference; objective reasonableness standard for state-court determinations)
Wainwright v. Witt, 469 U.S. 412 (trial judge’s demeanor and credibility determinations entitled to weight)
Lopez v. Thompson, 202 F.3d 1110 (9th Cir.) (de novo standard for federal habeas review of ineffective-assistance claims)