Carl Lee Simington v. JEFF PREMO, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL LEE SIMINGTON,
Petitioner-Appellant,
v.
JEFF PREMO, Superintendent,
Respondent-Appellee.
No. 15-35877
D.C. No. 6:14-cv-01252-SI
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 10, 2017
Portland, Oregon
Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ, District
Judge.**
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
FILED
APR 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Carl Lee Simington (“Simington”), an Oregon state prisoner, appeals from the
district court’s judgment and order denying his 28 U.S.C. § 2254 petition for a writ
of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review
de novo, Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014), and we affirm.
In 2003, Simington was convicted after a bench trial of robbery in the third
degree in violation of OR. REV . STAT . § 164.395 (Count 1); and two counts of
robbery in the second degree in violation of O R. REV . STAT . § 164.405 (Counts 2 and
3). Each count was based on a separate incident, which occurred on three different
days. Simington seeks federal habeas relief from those convictions on three grounds.
First, Simington argues that his due process right to a fair, competent tribunal
was violated because the judge who presided at his bench trial was mentally
incompetent. Simington is not entitled to habeas relief on that claim because he has
not presented “clear evidence” that the judge was mentally incompetent at the time
of his trial. See Deere v. Cullen, 718 F.3d 1124, 1147-1151 (9th Cir. 2013).
Second, Simington contends that his right to effective assistance of counsel
was violated when his trial counsel failed to: (1) advise Simington of the trial judge’s
reputation before Simington waived a jury trial; (2) object to a witness’s in-court
identification of Simington after he was told to stand; and (3) move for a judgment
of acquittal on Count 1.1 Even assuming that trial counsel’s performance fell below
1 Simington initially claimed that trial counsel had also rendered ineffective

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an objective standard of reasonableness, Simington has not shown prejudice
because: (1) Simington has not established that he would have obtained a more
favorable outcome from a different factfinder, see Hensley v. Crist, 67 F.3d 181, 185
(9th Cir. 1995); (2) Simington himself testified that he was present at the incident in
question, and (3) Simington has not established a reasonable probability that a
different result would have obtained if counsel had moved for a judgment of acquittal
on Count 1, particularly given the trial court’s statements that the State had proven
Count 1 beyond a reasonable doubt, See Premo v. Moore, 562 U.S. 115, 120-21
(2011).
Third, Simington asserts that his due process right to a conviction based on
sufficient evidence was violated with respect to Counts 1 and 3. Although the State’s
case was not overwhelming, it was neither contrary to nor an unreasonable
application of federal law for the state court to conclude that, viewing the evidence
in the light most favorable to the prosecution, a rational trier of fact could have found
that the prosecution proved the essential elements of both counts beyond a
reasonable doubt. See Cavazos v. Smith, 565 U.S. 1, 2 (2011).
The district court therefore properly concluded that the state court’s
determination of Simington’s claims was neither contrary to nor an unreasonable
assistance by failing to move for a judgment of acquittal on Count 3, but he later
conceded that trial counsel had made that motion.

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application of clearly established federal law, 28 U.S.C. § 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 412 (2000), nor based on an unreasonable determination of
the facts, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86, 100 (2011).
AFFIRMED.

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