Daniel Edward Ryel v. Gary Kilmer

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL EDWARD RYEL,
Petitioner - Appellant,
v.
GARY KILMER,
Respondent - Appellee.
No. 11-35377
D.C. No. 3:08-cv-06072-HU
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted May 9, 2012
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Although the state appeals court and state post-conviction court may have
differed in their interpretation of the state trial court’s evidentiary rulings, neither
AEDPA nor any precedent interpreting that statute authorizes us to avoid the
deference owed to the last-reasoned state court decision on that ground, and we
FILED
MAY 16 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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decline to do so here. Moreover, the state court was not obliged to explain the
reasons for its rejection of Ryel’s ineffective assistance claim, and therefore we do
not review de novo the question whether any error on the part of trial counsel
prejudiced Ryel. See Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011).
Under the AEDPA standard, see 28 U.S.C. § 2254(d), the state court’s
determination that Ryel’s counsel made “compelling arguments” for the admission
of the excluded evidence and therefore did not perform deficiently under the first
prong of Strickland v. Washington, 466 U.S. 668 (1984), was not objectively
unreasonable. Nor would it have been objectively unreasonable for the state court
to conclude that Ryel was not prejudiced by his counsel’s performance, where the
excluded evidence was circumstantial and the record included substantial direct
and circumstantial evidence pointing to Ryel’s guilt. See Harrington, 131 S. Ct. at
792.
AFFIRMED.

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Ryel v. Kilmer, No. 11-35377
TASHIMA, Circuit Judge, concurring in the result:
I concur in the result.
FILED
MAY 16 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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