Scott Michael Hill v. Patrick Glebe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT MICHAEL HILL,
Petitioner-Appellant,
v.
PATRICK GLEBE,
Respondent-Appellee.
No. 17-35942
D.C. No. 3:14-cv-05330-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted February 5, 2019
Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.
Scott Hill appeals the district court’s denial of his petition for a writ of
habeas corpus. See 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
§ 1291.
FILED
FEB 21 2019
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 Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.

-- 1 of 3 --

The district court did not err in holding that the outcome at trial would not
“reasonably likely have been different” had Hill’s counsel investigated a defense of
diminished capacity. Strickland v. Washington, 466 U.S. 668, 696 (1984). Even if
an investigation established that Hill suffered from post-traumatic stress disorder,
such a diagnosis does not establish that Hill was unable to form the requisite
criminal intent the night of the attack. Indeed, Hill’s psychiatric expert could
testify only that it was a “possibility” that a diminished capacity defense could
have been raised at trial. Further, pursuing a diminished capacity defense would
have harmed Hill’s case in important ways. Hill would have been forced to submit
to an examination by a prosecution expert, see State v. Hutchinson, 959 P.2d 1061,
1069 (Wash. 1998) (en banc), which could have led to evidence that Hill was not
credible, given that Hill’s own psychiatric expert thought Hill had “a tendency to
magnify illness” and may have been “malingering.” A diminished capacity
defense would have also conflicted with Hill’s detailed recollection of his intent
and deliberative actions on the night of the crime. Had Hill testified regarding his
lack of criminal intent, such testimony would have conflicted with the theory that
he was unable to form any intent. Accordingly, Hill has failed to show “a
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v.
2

-- 2 of 3 --

Pinholster, 563 U.S. 170, 189 (2011) (quoting Harrington v. Richter, 562 U.S. 86,
112 (2011)).
Hill’s claim that trial counsel rendered ineffective assistance for failing to
ask for a lesser-included offense instruction is barred by the one-year statute of
limitations in 28 U.S.C. § 2244(d)(1), which runs “on a claim-by-claim basis.”
Mardesich v. Cate, 668 F.3d 1164, 1173 (9th Cir. 2012). Because Hill did not
include this claim in his habeas petition, his claim is untimely and not properly
before the court for consideration. Nor has Hill demonstrated that the untimely
jury-instruction claim relates back to his claim that counsel was ineffective for
failing to investigate and present a diminished capacity defense, because the two
claims are not “tied to a common core of operative facts.” Hebner v. McGrath,
543 F.3d 1133, 1138–39 (9th Cir. 2008) (internal quotation marks omitted).
AFFIRMED.
3

-- 3 of 3 --