Armen Oganyan v. GEORGE A. NEOTTI, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMEN OGANYAN,
Petitioner - Appellant,
v.
GEORGE A. NEOTTI, Warden,
Respondent - Appellee.
No. 14-55086
D.C. No. 2:10-cv-01625-GW-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 21, 2015**
Pasadena, California
Before: TROTT, KLEINFELD, and CALLAHAN, Circuit Judges.
Armen Oganyan stands convicted by a jury in California of attempted
murder, assaulting his victim with a semi-automatic firearm, and shooting a
firearm at an occupied vehicle. The superior court sentenced him to 32 years to
FILED
OCT 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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life. His direct appeals to the California Court of Appeal and to the California
Supreme Court were unsuccessful, as was his petition for a writ of habeas corpus
to the latter. He comes to us on federal habeas after the district court denied his
petition.
He raises two issues, neither of which has merit.
First, he alleges that the California Superior Court violated his right to due
process and the effective assistance of counsel by denying his motions for a
continuance.
Second, he asserts that his trial attorney gave him ineffective assistance by
advising him to reject a plea offer of 17 years, far less than what he received by
following his attorney’s recommendation to go to trial.
The California Court of Appeal thoroughly and thoughtfully addressed
Oganyan’s first issue on direct appeal. The court concluded that the trial court did
not abuse its discretion in denying counsel’s motions to continue. Moreover, the
Court of Appeal went further in its analysis, determining that “[a]ny alleged trial
court errors were not prejudicial.”
After reviewing the record on this issue, we conclude that the Court of
Appeal’s adjudication of it was not contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court
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of the United States. Moreover, the court’s ruling was not based on an
unreasonable determination of any fact in light of the evidence presented in the
relevant state court proceeding. 28 U.S.C. § 2254(d); Harrington v. Richter, 562
U.S. 86, 97-98 (2011).
As to Oganyan’s second issue, the California Supreme Court summarily
denied his petition without a reasoned opinion. However, “[w]here a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to deny
relief.” Richter, 502 U.S. at 98.
This burden Oganyan has not carried. Our review of the trial transcript --
including especially Boots’s cross examination and counsel’s final arguments to
the jury -- demonstrate that the People’s case was very defensible.
Counsel advised Oganyan to go to trial because he concluded that the
prosecutor’s evidence was weak and full of holes which could be exploited in his
client’s defense. Counsel was right. As he explained in his closing arguments to
the jury, no one could positively identify his client as the shooter. The victim did
not testify, having left the country with another percipient witness, his wife’s
mother. The victim’s wife testified, but did not implicate Oganyan, her brother.
Capitalizing on the opportunity, counsel surmised that she might be the shooter.
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Although the officers claimed Oganyan had a contusion on his forehead, a bloody
nose, and a ripped shirt, his booking photo (a defense exhibit) showed no evidence
corroborating the officers’ claims.
Boots, who was a witness to the shooting, could not say that Oganyan was
the shooter, only that it looked like him. Boots’s testimony was full of
assumptions and mistakes about details, such as how far he was from the shooting
and how light it was at 9:00 p.m. on November 11, 2006.
In addition, no scientific evidence linked Oganyan to the shooting. No gun
shot residue was on his hands or clothing even though the shooter fired at least 8
shots from a .45 caliber handgun, no fingerprints were on the bullet casings found
at the scene, and no gun was recovered or evidence produced that Oganyan ever
owned a .45. Counsel used the absence of scientific evidence as evidence of
innocence. Furthermore, Oganyan took the stand and testified he did not shoot the
victim. The defense failed, but this was definitely a triable case, as demonstrated
not only by the evidence, but also by (1) counsel’s opening statement, (2) counsel’s
vigorous final arguments to the jury, and (3) Oganyan’s brief to the California
Court of Appeal.
Thus, we conclude that the California Supreme Court had a reasonable basis
for denying Oganyan’s petition for relief.
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AFFIRMED.
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