United States v. 2020-05-11 | 19-15265 | LEMAR GANT V. BRIAN WILLIAMS, SR. | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEMAR GANT,

Petitioner-Appellant,

v.

BRIAN WILLIAMS, SR.; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,

Respondents-Appellees.

No. 19-15265

D.C. No.
2:16-cv-00528-JAD-NJK

MEMORANDUM
*

Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding

Submitted April 17, 2020
**

San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,
***
Judge.

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

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED

MAY 11 2020

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

2
Lemar Gant appeals the district court’s denial of his 28 U.S.C. § 2254 petition
challenging his conviction in Nevada state court for being an ex-felon in possession
of a firearm. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Defense counsel’s failure to run a criminal background check on a witness
whose incarceration impeached his exculpatory testimony was not constitutionally
deficient. The adequacy of counsel’s witness investigation depends on whether it
was “reasonable considering all the circumstances,” see Strickland v. Washington,
466 U.S. 668, 688 (1984), and the state court had reason to conclude that it was, see
Harrington v. Richter, 562 U.S. 86, 105 (2011). After learning about the witness
through Gant’s girlfriend, counsel sent an investigator to interview the witness,
reviewed the investigator’s report, and shared the testimony with Gant himself. It
was conceivable, if not entirely reasonable, then, for the state court to conclude that
Gant’s nonchalant response to the expected testimony gave counsel no reason to
doubt its veracity. See Strickland, 466 U.S. at 691 (“[W]hen a defendant has given
counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”). And although the devastating impact of the witness’s
previously unknown incarceration on Gant’s defense understandably has caused
counsel to reconsider his vetting process, “the harsh light of hindsight” cannot alter
our analysis. See Bell v. Cone, 535 U.S. 685, 702 (2002); see also Richter, 562 U.S.

3
at 105 (“The question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.” (quotation marks and citation omitted)).
We reach the same conclusion concerning defense counsel’s failure to ensure
receipt of (or check the electronic docket for) the prosecution’s supplemental witness
list. Although that filing likely would have alerted counsel to his own witness’s
incarceration, the state court reasonably concluded that this omission did not render
counsel’s performance constitutionally deficient. Gant offers no evidence that
counsel had either seen the supplemental witness list, noticed an issue with receiving
previous filings that he could have corrected, or otherwise learned about the
prosecution’s additional witness. That the state court made no express finding on
this point is of no moment. Already having failed to advance a more plausible
explanation, Gant cannot litigate the issue anew. See Richter, 562 U.S. at 98–99.
We must, and do, presume that the state court’s denial of relief included a rejection
of this argument. See id. at 99–100.
AFFIRMED.

Gant v. Williams, 19-15265
PAEZ, Circuit Judge, concurring
:
I agree with my colleagues that the Nevada Court of Appeals’ decision
rejecting Gant’s ineffective assistance of counsel claim was not an unreasonable
application of Strickland v. Washington, 466 U.S. 668 (1984). I arrive at this
conclusion through a different path, however. I seriously question whether the
state court’s determination that trial counsel’s defense strategy of calling a single
witness without conducting any independent investigation of that witness’s
background or the story he offered was constitutionally reasonable. Despite my
reservations, even assuming that counsel’s performance was deficient, Gant’s
claim fails on Strickland’s prejudice prong, as the state court reasonably
concluded. Gant argues that, but for trial counsel’s error, he would have called one
or more witnesses to testify that the officer planted the gun. But the evidence at
trial was that it was “highly unlikely” that Gant’s DNA could have been found on
the gun without him having handled the gun himself. Thus, Gant has not shown it
was “necessarily unreasonable” for the Nevada Court of Appeals to conclude that
“he had failed to undermine confidence in the jury’s” verdict. Cullen v. Pinholster,
563 U.S. 170, 190 (2011).
Accordingly, I concur in the judgment.

FILED

MAY 11 2020

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