511 F. App'x 608
9th Cir.2013Background
- California jury convicted Sands of stabbing Clarke and, two years later, murdering Ramirez, a witness to the stabbing.
- Convictions affirmed on direct appeal in California state courts, and then on state post-conviction review.
- Sands petitioned for a writ of habeas corpus under 28 U.S.C. § 2254; district court denied the petition.
- Court of appeals affirmed the district court on two certified issues and declined to address an uncertified issue.
- Sands alleged prosecutorial misconduct from disparaging remarks by the prosecutor during rebuttal, but no timely objection was lodged.
- Sands argued ineffective assistance of counsel to excuse the default; the court rejected relief under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct and default | Sands contends rebuttal remarks tainted trial; default improper | Respondent argues contemporaneous objection default bars review | Procedural default; no relief on merits |
| Ineffective assistance to excuse default | Counsel failed to object; ineffective assistance should excuse default | No prejudice; strong presumption of sound strategy | No Strickland prejudice; no relief |
| Uncertified question on wiretap evidence | Wiretap evidence obtained in violation of federal law | Challenge rests on statutory, not constitutional, rights | Court lacks jurisdiction to consider uncertified statutory claim |
Key Cases Cited
- Darden v. Wainwright, 477 U.S. 168 (U.S. Supreme Court 1986) (prosecutorial misconduct standard; due process)
- Fairbank v. Ayres, 650 F.3d 1243 (9th Cir. 2011) (contemporaneous objection rule and procedural default)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. Supreme Court 2010) (ineffective assistance standard; high bar to overcome)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (establishing performance and prejudice prongs)
- Harrington v. Richter, 562 U.S. 86 (U.S. Supreme Court 2011) (objective review of counsel's performance)
- United States v. Molina, 934 F.2d 1440 (9th Cir. 1991) (trial strategy and objections during closing statements)