Robert McDaniels v. RICHARD J. KIRKLAND, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MCDANIELS,
Petitioner - Appellant,
v.
RICHARD J. KIRKLAND, Warden,
Respondent - Appellee.
No. 09-17339
D.C. No. 4:05-cv-00904-PJH
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
KEELON T. JENKINS,
Petitioner - Appellant,
v.
MICHAEL S. EVANS, Warden,
Respondent - Appellee.
No. 11-15030
D.C. No. 3:05-cv-02003-MHP
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FILED
DEC 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted En Banc
June 16, 2015—San Francisco, California
Before: THOMAS, Chief Judge and PREGERSON, McKEOWN, W. FLETCHER,
BERZON, TALLMAN, CALLAHAN, IKUTA, CHRISTEN, HURWITZ and
FRIEDLAND, Circuit Judges.
Robert McDaniels and Keelon Jenkins appeal from denials of their separate
28 U.S.C. § 2254 petitions for writs of habeas corpus. We address their Batson
claims in a published opinion filed concurrently with this memorandum
disposition. Here, we address their ineffective-assistance-of-counsel claims.
We affirm the district court’s denial of McDaniels’s habeas petition with
respect to his ineffective-assistance-of-counsel claim. Fairminded jurists could
disagree about whether McDaniels’s claim is meritorious, which precludes federal
habeas relief. See Harrington v. Richter, 562 U.S. 86, 101-05 (2011).
Jenkins’s briefing on appeal addresses ineffective-assistance-of-counsel
claims for which we did not previously grant a certificate of appealability
(“COA”). We construe this briefing as a motion to expand the COA. See 9th
Cir. R. 22-1(e). So construed, we grant the motion in part and deny it in part.
We deny the motion with respect to Jenkins’s claim under People v. Marsden, 465
P.2d 44 (1970) (in bank), which we recognize as an ineffective-assistance-of-
counsel claim for purposes of federal habeas, see Robinson v. Kramer, 588 F.3d

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1212, 1216 (9th Cir. 2009). We grant the motion, however, with respect to
Jenkins’s other ineffective-assistance-of-counsel claim, which is based on his
allegation that trial counsel attacked Jenkins’s credibility at trial. Because this
claim is “adequate to deserve encouragement to proceed further,” Slack v.
McDaniel, 529 U.S. 473, 484 (2000), we order the State to submit briefing in
response to it. We return this claim to the three-judge panel for further
proceedings consistent with this disposition.
No. 09-17339 AFFIRMED. Motion to expand the certificate of
appealability GRANTED IN PART and DENIED IN PART in No. 11-15030;
No. 11-15030 REMANDED IN PART to the three-judge panel.

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