Jose Luis Rivera v. Jeanne S. Woodford; Attorney General of California

This disposition is not appropriate for publication and is not precedent except*
as provided by 9th Cir. R. 36-3.
The Honorable Robert E. Cowen, Senior United States Circuit Judge for**
the Third Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS RIVERA,
Petitioner - Appellant,
v.
JEANNE S. WOODFORD; ATTORNEY
GENERAL OF CALIFORNIA,
Respondent - Appellee.
No. 10-15078
D.C. No. 2:05-cv-02537-FCD-
JFM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., Senior District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: THOMPSON, COWEN, and SILVERMAN, Circuit Judges.**
FILED
JAN 26 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Jose Luis Rivera, who is currently serving a life sentence for felony murder
and other offenses, appeals from the District Court’s denial of his 28 U.S.C. § 2254
petition. We will affirm.
Rivera has claimed that his trial counsel provided ineffective assistance by
failing to conduct an adequate investigation into available defenses and then to
present at trial witnesses, other evidence, and a reasonable closing argument in
support of such defenses. We nevertheless conclude that the California Court of
Appeal’s rejection of his ineffectiveness claim on prejudice grounds was neither
contrary to, nor an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. See, e.g., 28 U.S.C. § 2254(d)(1).
The case against Rivera was overwhelming. For instance, his own admissions to
the police and his girlfriend supported his conviction for first-degree felony
murder, second-degree robbery, carjacking, and the jury’s finding true the special
circumstance allegations that the murder occurred during the commission of a
robbery and a carjacking. Under the circumstances, it was not unreasonable for the
state court to conclude that Rivera failed to establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984).

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We do note that prejudice is presumed in certain narrow circumstances, such
as “if the accused is denied counsel at a critical stage of his trial” or “if counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.”
United States v. Cronic, 466 U.S. 648, 659 (1984) (footnote omitted). However,
the United States Supreme Court characterized the difference between Strickland
and Cronic arguments as one “not of degree but of kind.” Bell v. Cone, 535 U.S.
685, 697 (2002) (footnote omitted). Accordingly, Rivera’s new Cronic claim must
be rejected because he never presented such a claim to either the state courts, the
Magistrate Judge, or the District Court (and therefore any such claim has never
been certified for appeal). See, e.g., 28 U.S.C. §§ 2253(c)(1)(A), 2254(b)(1)(A);
Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997). In any event, we must
reject his claim as without merit because the trial counsel’s apparent deficiencies
did not rise to the level required by Cronic (e.g., the trial counsel still managed to
raise a number of objections, subjected several witnesses to cross-examination, and
provided a relatively lengthy closing argument addressing the crucial notion of a
“plan”).
AFFIRMED.

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