Opinion
Argued and Submitted En Banc, San Francisco, California June 16, 2015
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the Northern District of California. D.C. No. 4:05-cv-00904-PJH. Phyllis J. Hamilton, Chief District Judge, Presiding.
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:05-cv-02003-MHP. Marilyn H. Patel, Senior District Judge, Presiding.
No. 09-17339 AFFIRMED. Motion to expand the certificate of appealability GRANTED IN PART and DENIED IN PART in No. 11-15030; No. 11-15030 REMANDED IN PART to the three-judge panel.
For Robert Mcdaniels, Petitioner - Appellant (09-17339): Richard Alan Tamor, Tamor & Tamor, Law Chambers Building, San Francisco, CA.
For RICHARD J. KIRKLAND, Warden, Respondent - Appellee (09-17339): Arthur Paul Beever, Deputy Attorney General California Department of Justice San Francisco, CA.
For Civil Rights Organizations, Amicus Curiae (09-17339): David Joel Berger, Esquire, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA; Eva Jefferson Paterson, Equal Justice Society, San Francisco, CA.
For Keelon T. Jenkins, Petitioner - Appellant (11-15030): Albert Joel Kutchins, Attorney, Berkeley, CA.
For MICHAEL S. EVANS, Warden, Respondent - Appellee (11-15030): Arthur Paul Beever, Deputy Attorney General, California Department of Justice, San Francisco, CA.
For Civil Rights Organizations, Amicus Curiae (11-15030): David Joel Berger, Esquire, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA; Eva Jefferson Paterson, Equal Justice Society, San Francisco, CA.
Before: THOMAS, Chief Judge and PREGERSON, McKEOWN, W. FLETCHER, BERZON, TALLMAN, CALLAHAN, IKUTA, CHRISTEN, HURWITZ and FRIEDLAND, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Robert McDaniels and Keelon Jenkins appeal from denials of their separate 28 U.S.C. § 2254 petitions for writs of habeas corpus. We address their Batson claims in a published opinion filed concurrently with this memorandum disposition. Here, we address their ineffective-assistance-of-counsel claims.
We affirm the district court's denial of McDaniels's habeas petition with respect to his ineffective-assistance-of-counsel claim. Fairminded jurists could disagree about whether McDaniels's claim is meritorious, which precludes federal habeas relief. See Harrington v. Richter, 562 U.S. 86, 101-05, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
Jenkins's briefing on appeal addresses ineffective-assistance-of-counsel claims for which we did not previously grant a certificate of appealability (" COA" ). We construe this briefing as a motion to expand the COA. See 9th Cir. R. 22-1(e). So construed, we grant the motion in part and deny it in part. We deny the motion with respect to Jenkins's claim under People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970) (in bank), which we recognize as an ineffective-assistance-ofcounsel claim for purposes of federal habeas, see Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009). We grant the motion, however, with respect to Jenkins's other ineffective-assistance-of-counsel claim, which is based on his allegation that trial counsel attacked Jenkins's credibility at trial. Because this claim is " adequate to deserve encouragement to proceed further," Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we order the State to submit briefing in response to it. We return this claim to the three-judge panel for further proceedings consistent with this disposition.
No. 09-17339 AFFIRMED. Motion to expand the certificate of appealability GRANTED IN PART and DENIED IN PART in No. 11-15030; No. 11-15030 REMANDED IN PART to the three-judge panel.