United States v. 2020-10-22 | 18-55565 | DAVID FALCON V. NEIL MCDOWELL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID A. FALCON,

Petitioner-Appellant,

v.

NEIL MCDOWELL, Warden,

Respondent-Appellee.

No. 18-55565

D.C. No.
2:14-cv-02867-AG-RAO

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Argued and Submitted August 31, 2020
Pasadena, California

Before: SILER,
**
BERZON, and LEE, Circuit Judges.

David Falcon appeals from the district court’s denial of his petition for habeas
corpus. We have jurisdiction under 28 U.S.C. § 2253, and we review de novo the
denial of a habeas corpus petition. See Sanders v. Cullen, 873 F.3d 778, 793 (9th

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
FILED

OCT 22 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Cir. 2017). We affirm.
1. Falcon’s habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), so he must show that the state
court decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” id.
§ 2254(d)(1)–(2); Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). We review the
state court’s last reasoned decision, which in this case is the California Court of
Appeal opinion. Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012),
2. The only certified issue on appeal is whether Falcon’s trial counsel
provided ineffective assistance of counsel either (i) when he failed to present
available evidence that Falcon argues impeached the prosecution’s witnesses and
supported Falcon’s defense, or (ii) when he presented an alibi defense despite
Falcon’s earlier admissions of being at the crime scene. Thus, to be entitled to relief,
Falcon had to show that the state appellate court unreasonably applied the standard
from Strickland v. Washington, 466 U.S. 668 (1984) for ineffective assistance of
counsel claims. To do so, Falcon must demonstrate that trial counsel provided
deficient assistance and that Falcon suffered prejudice as a result. See Harrington
v. Richter, 562 U.S. 86, 104 (2011). There is a strong presumption that counsel’s

3
representation was reasonable, and prejudice requires a reasonable probability that
the result would have been different but for counsel’s errors. See id.
3. We need not decide whether Falcon’s trial counsel provided deficient
representation because he cannot satisfy the second prong of the Strickland analysis.
He has not shown that there is a reasonable probability that the outcome of the trial
would have been different had his trial counsel not committed the alleged errors
because the evidence against him was overwhelming. When presented with a search
warrant for his home, Falcon directed police to the gun used in the murder, which
was stored in a closet in his home. There is no explanation in the record why the
gun identified as the murder weapon was in Falcon’s closet and how he knew it was
located there. The only testimony on this point, by Falcon’s aunt Anna Maria
Sevilla, was quite implausible and, in any event, placed a gun under a patio, not in a
closet in Falcon’s room. Further, two eyewitnesses identified Falcon as the shooter,
and an officer saw Falcon run home from an area near the crime scene. The
California Court of Appeal therefore reasonably found that there was no reasonable
likelihood that the outcome would have been different in the face of such strong
evidence.
AFFIRMED.