Lynette McDaniels v. JANELLE ESPINOZA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNETTE MCDANIELS,
Petitioner-Appellant,
v.
JANELLE ESPINOZA, Warden,
Respondent-Appellee.
No. 21-16629
D.C. No. 3:18-cv-03495-VC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted December 6, 2022**
San Francisco, California
Before: GRABER, WALLACH,*** and WATFORD, Circuit Judges.
Petitioner Lynette McDaniels was convicted of six counts of robbery and
four associated weapons charges. She claims her conviction should be overturned
* 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 Evan J. Wallach, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
FILED
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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because of ineffective assistance of counsel due to defense counsel’s failure to seek
a final ruling on the admissibility of potentially exculpatory third-party DNA
evidence collected from bait money left behind at one of the robberies. The
California Superior Court and the district court both denied Petitioner’s habeas
petition for failure to demonstrate prejudice. Petitioner timely seeks our review.
We deny the petition for the same reason.
The district court determined that the California Superior Court’s finding
that “[t]here is neither direct nor circumstantial evidence in the record . . . that the
robber ever touched the bait money during the robbery” was unreasonable and
therefore reviewed Petitioner’s claim de novo. Respondent contends that this
statement does not justify deviating from the typical “highly deferential standard
for evaluating state-court [habeas] rulings.” Lindh v. Murphy, 521 U.S. 320, 333
n.7 (1997). Even if we assume that de novo review was proper,1 Petitioner still
fails to show prejudice.
First, the trial judge likely would not have admitted the evidence had defense
counsel pressed for a final ruling, because Ms. Kakoui’s testimony did not “fill in
1 The district court reviewed the entire ineffective assistance of counsel
claim de novo based on its determination that a single factual finding by the state
court was incorrect. However, only an unreasonable application of federal law by
the state court can trigger authority under AEDPA for the district court to conduct
a de novo review of the state court’s legal determinations. 28 U.S.C. § 2254(d)(1);
Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

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the gaps” regarding necessary foundation as to its relevance for exculpatory
purposes, as defense counsel had promised at the pretrial hearing. Ms. Kakoui did
not even see the robber touch the bait money, much less address the trial judge’s
foundational questions surrounding how the bait money was structured and
handled prior to its use. Second, even if admitted, the third-party DNA evidence
would not have created a substantial likelihood of affecting the outcome in the
case, see Harrington v. Richter, 562 U.S. 86, 111–12 (2011), given the strength of
the evidence against Petitioner and the speculative nature of the DNA evidence.
Given this record, any error by the district court was harmless.
PETITION DENIED.

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