Willie B. Coleman, Iii v. D. K. SISTO, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE B. COLEMAN, III,
Petitioner - Appellant,
v.
D. K. SISTO, Warden,
Respondent - Appellee.
No. 13-16054
D.C. No. 2:09-cv-00020-DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, Magistrate Judge, Presiding
Argued and Submitted December 10, 2014
San Francisco, California
Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.
Petitioner Willie B. Coleman III appeals the district court’s denial of his
petition for writ of habeas corpus. Coleman alleges that his trial counsel provided
constitutionally deficient representation by promising the jury in his opening
FILED
JAN 29 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.

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statement that it would hear from an alibi witness when counsel did not ultimately
call the witness.1 We have jurisdiction under 28 U.S.C. § 1291, and affirm.
“We review de novo a district court’s denial of habeas corpus relief.” Miles
v. Ryan, 713 F.3d 477, 485 (9th Cir. 2013). The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) permits federal habeas relief only if Coleman
demonstrates that the state court’s denial of his claim (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Review of ineffective assistance claims
under AEDPA is “doubly deferential,” and relief may be granted only if the state
court “unreasonably applied the more general standard for
ineffective-assistance-of-counsel claims established by” Strickland v. Washington,
466 U.S. 668 (1984). Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013)
(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
It was not unreasonable for the state court to conclude that Coleman’s trial
counsel’s “plan to use the alibi evidence and to mention it in his opening
1 Coleman does not challenge counsel’s mid-trial decision to forgo calling
the alibi witness. Coleman argues only that trial counsel should not have
mentioned the alibi witness in his opening statement unless counsel knew with
certainty that he would call the witness at trial.

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statement” fell within “the wide range of reasonable professional assistance”
permitted by Strickland. Counsel focused his opening statement on the claim that
“[t]he evidence is going to show this is a case of mistaken identification,” and only
briefly mentioned the alibi defense towards the end of his statement. At the time
he gave his opening statement, counsel was aware “that the alibi evidence had . . .
weaknesses” but nonetheless decided to use the alibi testimony because the witness
“had not withdrawn his story despite intense questioning by police.” Only “[a]fter
seeing the prosecution’s case” did counsel “decide[] not to use the alibi evidence”
and rely instead on the strength of his mistaken identification defense.
Given that Strickland mandates a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” 466
U.S. at 689, it was not objectively unreasonable for the state court to conclude that
counsel’s conduct satisfied Strickland’s forgiving standard. See Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004) (explaining that state courts enjoy “more
leeway” under AEDPA in applying general standards). Although trial counsel
submitted a declaration averring that “detailing alibi evidence in my opening
statement before hearing the prosecution’s case was not the result of a tactical
decision,” it was not objectively unreasonable for the state court to pay little heed
to counsel’s after-the-fact assessment of his trial strategy. See Harrington v.
Richter, 131 S. Ct. 770, 790 (2011) (“After an adverse verdict at trial even the most

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experienced counsel may find it difficult to resist asking whether a different
strategy might have been better, and, in the course of that reflection, to magnify
their own responsibility for an unfavorable outcome. Strickland, however, calls for
an inquiry into the objective reasonableness of counsel’s performance, not
counsel’s subjective state of mind.”); Hendricks v. Calderon, 70 F.3d 1032, 1039
(9th Cir. 1995) (“[T]he latter-day emergence of [petitioner’s trial attorneys’] belief
in their own incompetence runs afoul of the rule of contemporary assessment.”).
Accordingly, we affirm the district court’s denial of Coleman’s petition. See 28
U.S.C. § 2254(d)(1); Harrington, 131 S. Ct. at 788.
AFFIRMED.

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