Lorraine Netherton v. JANE PARNELL, Superintendent, Washington Corrections Center for Women

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORRAINE NETHERTON,
Petitioner - Appellant,
v.
JANE PARNELL, Superintendent,
Washington Corrections Center for
Women,
Respondent - Appellee.
No. 15-35052
D.C. No. 2:13-cv-01281-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted February 1, 2016
Seattle, Washington
Before: KOZINSKI and O’SCANNLAIN, Circuit Judges and ORRICK,** District
Judge.
FILED
MAR 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William Horsley Orrick III, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.

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Lorraine Netherton appeals the district court’s denial of her habeas petition
challenging various aspects of her Washington conviction for second-degree
murder. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
The Washington Court of Appeals’ dismissal of Netherton’s petition
constituted an “adjudicat[ion] on the merits” for purposes of the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), because the decision
issued by the court addressed “the substance of the constitutional claim[s]
advanced,” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). That
Netherton’s claims were disposed of by an order from the Chief Judge, as
authorized under Washington law, see Wash. R. App. P. 16.11(b), rather than by a
three-judge panel, is irrelevant as “adjudication necessary to trigger AEDPA
review is not restricted to any particular form of hearing,” Lambert, 393 F.3d at
967. Thus the Washington Court of Appeals’ denial of Netherton’s claims must be
upheld unless it was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts” presented. 28
U.S.C. § 2254(d).
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II
The Washington Court of Appeals’ disposition of Netherton’s claims under
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972), warrants AEDPA deference. To establish a Brady violation, “a defendant
must show that 1) the prosecution suppressed evidence that 2) was favorable to the
accused and 3) was material.” Barker v. Fleming, 423 F.3d 1085, 1094 (9th Cir.
2005). The court’s disposition was a reasonable application of clearly established
law because Netherton failed to demonstrate that the prosecution had in fact
suppressed impeachment evidence relating to Detective Denny Gulla or ballistics
expert Evan Thompson.
Nor did the district court err in denying Netherton discovery regarding such
claims. When a state court adjudicates a claim on the merits, “evidence introduced
in federal court has no bearing on § 2254(d)(1) review.” Cullen v. Pinholster, 563
U.S. 170, 185 (2011). Netherton was therefore not entitled to discovery because the
Washington Court of Appeals considered and rejected her Brady challenges on the
merits.
III
The Washington Court of Appeals’ determination that defense counsel’s
failure to take photographs of Netherton in jail did not amount to ineffective
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assistance of counsel was not unreasonable. Given the evidence that Netherton in
fact had not suffered significant visible injury, and the fact that any new
photographs would have been taken days after her encounter with Desiree Rants,
Netherton failed to demonstrate that there was “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Because the
Washington Court of Appeals’ conclusion that Netherton suffered no prejudice
was a reasonable application of law to the facts of the case, the decision must be
upheld. See 28 U.S.C. § 2254(d).
IV
The Washington Court of Appeals’ determination that the State’s drive-by
shooting charge did not constitute vindictive prosecution was not unreasonable.
Netherton failed to demonstrate that the prosecutor’s charge was wholly
unsupported by probable cause, see Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978), and there is no indication that the State filed the additional charge solely
for the purpose of punishing Netherton for exercising a constitutional or statutory
right, see United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011).
Furthermore, the Washington Court of Appeals determined that Netherton
was not prejudiced by such a charge. Because the drive-by shooting charge was
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dropped before trial, and because any negative effect that resulted from its
presence on the docket was not significant enough to demonstrate that Netherton
was prejudiced as a result, the court’s determination that Netherton suffered no due
process violation was reasonable.
V
Given the record before the Washington Court of Appeals, no “reasonable
jurist” could find the Court of Appeals’ assessment of the uncertified issues
debatable. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). We thus decline
to expand the certificate of appealability.
Netherton’s “Motion to File Additional Excerpt of Record,” filed on
February 4, 2016, is granted.
AFFIRMED.
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