Michael E. Mockovak v. Ron Haynes

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL E. MOCKOVAK,
Petitioner-Appellant,
v.
RON HAYNES,
Respondent-Appellee.
No. 21-35634
D.C. No. 2:18-cv-00671-JLR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted June 7, 2022**
Seattle, Washington
Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.
FILED
JUN 15 2022
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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Michael Mockovak appeals the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253.
The Washington Court of Appeals’s determination that Mockovak’s trial
counsel did not render ineffective assistance of counsel by (a) failing to investigate
whether Mockovak’s history of childhood abuse rendered him more susceptible to
entrapment, and (b) failing to introduce such evidence at trial (i.e., a defense of
“learned helplessness”), was not an objectively unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984). Even assuming that the state
habeas court’s determination that trial counsel’s performance was not deficient was
an unreasonable application of Wiggins v. Smith, 539 U.S. 510 (2003), and Sears v.
Upton, 561 U.S. 945 (2010),1 the state habeas court could reasonably conclude that
any deficiency by Mockovak’s counsel was not prejudicial, given the “extensive
evidence that Mockovak initiated discussions with Kultin about hiring Russian
hitmen,” and Mockovak’s response (“That sounds good”) when Kultin told him
that everything was in place for King’s murder. See Staten v. Davis, 962 F.3d 487,
495, 497 (9th Cir. 2020), cert. denied, 141 S. Ct. 1502 (2021).
1 Because we make this assumption, we do not reach Mockovak’s additional
arguments regarding the deficiency prong of the Strickland analysis.
2

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We reject Mockovak’s argument that the state habeas court conflated
Strickland’s deficiency and prejudice prongs and failed to consider the totality of
the evidence in its prejudice analysis. The court separated its prejudice analysis
from its deficiency analysis, considered the learned helplessness evidence that
Mockovak claimed should have been presented, and determined that Mockovak
did not show a reasonable probability that such evidence would have changed the
outcome of his trial.
AFFIRMED.
3

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