Case Information
*1 Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.
Petitioner-Appellant Bryan Joseph Mincey (Mincey) appeals the district court’s denial of his habeas claims challenging his conviction. The district court issued a certificate of appealability for Mincey’s claim challenging the exclusion of *2 certain evidence regarding Sandra Brown (Brown), his girlfriend and co-defendant. We subsequently ordered the state to address uncertified ineffective assistance of counsel claims.
Certified Claim
The trial court properly excluded evidence of Brown’s prior drug use
and child abuse as cumulative. “[W]ell established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or potential to mislead the
jury.
See, e.g.
, Fed. Rule Evid. 403. . .”
Holmes v. South Carolina
,
The parties agreed that Brown abused the child victim on the night of the
child’s murder. As a result, the trial court granted the prosecution’s motions
in
limine
to exclude evidence of Brown’s prior drug use and child abuse. The trial
court noted that, for every witness Mincey presented to demonstrate Brown’s prior
bad acts, the prosecution could present an equal number of witnesses attesting to
Mincey’s prior drug use and child abuse. Courts may limit the number of
witnesses to avoid cumulative evidence.
See Holmes
,
Uncertified Claims
Because “jurists of reason could conclude the issues presented are adequate
to deserve encouragement to proceed further,” we expand the certificate of
appealability to include the ineffective assistance of counsel claims discussed
below.
Buck v. Davis
,
2.
Mincey’s counsel did not render ineffective assistance by calling Dr.
Oliver as a witness to focus on one particular strategy (lack of intent) to the
exclusion of others. Counsel reasonably believed that Dr. Oliver would testify that
Mincey lacked intent to kill the child victim, and made a tactical decision to
challenge the intent element of the charges against Mincey by calling Dr. Oliver as
a witness. “Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client,
with opposing counsel, and with the judge. . . .”
Harrington v. Richter
, 562 U.S.
86, 105 (2011). We may not second-guess that tactical decision.
See id
. The
district court’s denial of this claim was not contrary to, or an unreasonable
application of,
Strickland v. Washington
,
interviews between Mincey and sheriff’s deputies. The tapes included disparaging
statements made by the deputies accusing Mincey of lying and of sexually abusing
*4
the deceased child. Admission of these unredacted tapes was part of a
comprehensive trial strategy to convey the coercive atmosphere in which Mincey’s
statements were taken. The trial court admonished the jury that the questions from
the deputies were not evidence, and that the deputies lied to Mincey during the
interrogation. Counsel’s tactical election to permit the jury to hear the untrue
statements made by the deputies to impugn the interrogation process negates any
potential ineffective assistance of counsel claim.
See Strickland
,
massive blunt injuries and, before death, likely suffered from shock and metabolic
acidosis (an acid buildup in the body). The coroner also conducted a toxicology
test, with no positive results for amphetamines or any other narcotics. Years later,
Dr. Pablo Stewart, a psychiatrist, evaluated the coroner’s testimony and autopsy
reports, and questioned whether the metabolic acidosis was caused by physical
trauma or amphetamine ingestion. “To the extent that this new testimony
contradicts the prosecution’s expert testimony, it’s simply a difference in opinion. .
*5
. .”
Gimenez v. Ochoa
,
5. Dr. Stewart’s opinion, without more, did not warrant an evidentiary hearing. We need not grant an evidentiary hearing if Mincey’s factual allegations, taken as true, are insufficient to entitle him to relief. See Gonzalez v. Knowles , 515 F.3d 1006, 1014-15 (9th Cir. 2008). Even if Mincey were able to show that Dr. Stewart’s opinion would have instilled doubt into the mind of a juror at trial, thus avoiding a guilty verdict, he would not be entitled to relief because he cannot show that his lawyer’s decision against pursuing that strategy was unreasonable. There is no “quantum of . . . evidence” that Mincey could reveal at an evidentiary hearing to undermine his lawyer’s decision, as opposed to the coroner’s conclusion. Id . at
Neither was Dr. Stewart’s opinion sufficient to establish that the coroner
testified falsely or that the prosecution presented false testimony.
See Napue v.
Illinois
,
AFFIRMED.
Notes
[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.