Demirdjian v. Gipson

832 F.3d 1060

Michael Demirdjian, Petitioner–Appellant,

v.Connie Gipson, Warden, Respondent–Appellee.

No. 09–56453

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2014, Pasadena, California

Filed August 10, 2016

Mark J. Geragos (argued), Geragos & Geragos, Los Angeles, California, for Petition–Appellant.

Jason Tran (argued), Deputy Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent–Appellee.

Before: John T. Noonan, Jr., Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

Dissent by Judge Noonan

OPINION

FISHER, Circuit Judge:

Michael Demirdjian appeals the denial of his 28 U.S.C. § 2254 habeas petition. In 2001, he was convicted of murdering two teenage boys with intent to inflict torture; he was 15 years old at the time of the crimes. During closing argument, the prosecution repeatedly commented on the defense's failure to explain key incriminating evidence or use competent evidence to support its exculpatory theories. Instead of objecting, defense counsel rebutted the comments by giving non-incriminating explanations of the evidence and reminding the jury the prosecution bore the burden of proof. Demirdjian was later sentenced to two consecutive terms of 25 years to life.

In his habeas petition, Demirdjian claims his counsel was ineffective by failing to challenge the prosecution's statements as either improper comments on Demirdjian's decision not to testify, in violation of Griffin v. California , 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), or improper shifting of the burden of proof to the defense. He also claims his sentence violates the Eighth Amendment because it is the “functional equivalent” of a mandatory life-without-parole sentence, and he was a juvenile offender. The district court denied habeas relief on both claims.

We affirm under the deferential standard required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the question is not whether we think Demirdjian received ineffective assistance or an unconstitutional sentence, but whether there is any reasonable argument to the contrary. We conclude there is. First, there is a reasonable argument that, because there was no actual prosecutorial error, defense counsel's decision to rebut the prosecution's comments directly rather than object at trial or on appeal was adequate, and this strategy did not undermine the reliability of Demirdjian's conviction. Second, there is a reasonable argument Demirdjian's sentence is constitutional because it actually allows for the possibility of parole.

I. Background

On the evening of Saturday, July 22, 2000, petitioner Michael Demirdjian, then 15, played basketball at a local park with 13-year-old Chris McCulloch and 14-year-old Blaine Talmo, Jr. Around 9:50 p.m., he left with the boys to go to a nearby school. The next evening, McCulloch and Talmo were found on a playground a few blocks away—dead from multiple blunt force trauma. Next to Talmo's battered head, officers found a 16-pound rock stained with both victims' blood. A 12-foot bench weighing more than 60 pounds lay across McCulloch's chest and neck. The right front pocket of Talmo's pants was pulled out, as if emptied. A trail of bloody shoe prints indicated someone had walked away from the scene to an outside sink stained with McCulloch's blood.

Police later found traces of McCulloch's blood on Demirdjian's doorjamb. In Demirdjian's trash were Talmo's alarm clock and wallet—with some of the contents burned—and a pair of recently cleaned, but still bloody, sneakers. The discarded sneakers matched the bloody shoe prints, two dogs identified Demirdjian's scent on the 16-pound rock, and drops of Demirdjian's blood were found at the crime scene. Demirdjian had fresh cuts on his hands and knuckles and had lied when asked by Talmo's stepmother if he had seen Talmo. The state charged Demirdjian with two counts each of robbery and murder, with special circumstances for multiple murders, murder during a robbery and murder involving torture.

Demirdjian was tried twice. At his first trial, he took the stand and testified he had witnessed 19-year-old Adam Walker, a well-known drug dealer, murder the boys, but had not himself participated in the murders. That trial resulted in a hung jury, deadlocked at 8–4 in favor of conviction after a week of deliberations. At his second trial, Demirdjian did not testify. The prosecution focused on the key physical evidence tying Demirdjian to the crime scene and implying a guilty mind. As to motive, the prosecution theorized Demirdjian and his friend Damian Kim had wanted to “jack” McCulloch and steal his money because, five days earlier, Walker had pulled a “jack move” and stolen hundreds of dollars from Demirdjian and Kim during a fake drug deal. The defense challenged the reliability of some of the prosecution's key evidence, but focused primarily on introducing circumstantial evidence that Adam Walker murdered the boys and had his friends help clean up. Specifically, the defense emphasized that Walker had scrapes and bruises on his body, and police found at his friend's home a washed rug, a blood stain initially matching the stain on Demirdjian's door (but later found not to be a match) and—in the trash—some damp clothes, gloves and a newspaper article about the crimes.

The first prosecutor to speak at closing, Barshop, noted the prosecution's burden of proof, but repeatedly called on the defense to “explain” certain “unexplainable” evidence, such as the discarded wallet and clock, the bloody shoe prints and the blood stain at Demirdjian's home. Defense counsel, Mathews, responded with non-incriminating explanations of the evidence and stressed that the prosecution bore the burden of proof. A second prosecutor, Do, spoke on rebuttal, discrediting the defense's explanations and theory about Walker as not based on “reliable, competent evidence.” Defense counsel did not object to any of the prosecutors' statements. The court later instructed the jury that Demirdjian had a constitutional right not to testify, the jury could not discuss or draw any inferences from his silence and the prosecution bore the burden of proof.

The jury deliberated for five days and convicted Demirdjian of two counts of first-degree murder, with special circumstances for multiple murders and intentional infliction of torture. He was acquitted of robbery and special-circumstance murder during a robbery and was sentenced to two consecutive terms of life imprisonment without parole. On appeal, Demirdjian's counsel did not directly attack the prosecution's closing argument challenges to the defense on key evidence, but did argue the jury had impermissibly considered Demirdjian's silence.

After exhausting his direct appeals, Demirdjian timely filed a state habeas petition claiming, among other things, ineffective assistance based on his counsel's failure to challenge the prosecution's closing statements as either violating Griffin or improperly shifting the burden of proof to the defense. The trial court summarily denied the petition, as did the California Court of Appeal, stating the petition “ha[d] been read and considered.” The California Supreme Court denied review.

While that petition was pending, the California Attorney General informed the trial court that Demirdjian's sentence likely violated California law because he was only 15 years old at the time of the crimes. After a new sentencing hearing, Demirdjian was resentenced to two consecutive terms of 25 years to life, making him eligible for parole after 50 years. On appeal, he argued his new sentence violated the Eighth Amendment because he was a juvenile offender. The California Court of Appeal affirmed, reasoning that no Supreme Court precedent barred his sentence, see People v. Demirdjian , 144 Cal.App.4th 10, 50 Cal.Rptr.3d 184, 187–88 (2006), and the California Supreme Court again denied review.

Demirdjian timely filed a federal habeas petition. After the district court dismissed the petition, we granted a certificate of appealability on two issues: whether Demirdjian's counsel was ineffective at trial and on appeal by failing to raise a claim of prosecutorial misconduct for Griffin error and improper burden shifting; and whether Demirdjian's sentence of two consecutive terms of 25 years to life constitutes cruel and unusual punishment because he was a minor at the time of the crimes. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

II. Standard of Review

We review de novo a district court's denial of a habeas petition. See Murray v. Schriro , 745 F.3d 984, 996 (9th Cir. 2014). Our review is governed by AEDPA, which “bars relitigation of any claim ‘adjudicated on the merits' in state court” unless the state court's decision satisfies 28 U.S.C. § 2254(d)(1) or (2). Harrington v. Richter , 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting 28 U.S.C. § 2254(d) ). AEDPA's relitigation bar applies to both Demirdjian's summarily denied ineffective assistance claim, see id. at 99–100, 131 S.Ct. 770, and his Eighth Amendment claim, see id. at 98, 131 S.Ct. 770. The California Court of Appeal's decision on each claim is the “relevant state-court decision” for purposes of § 2254(d). Murray , 745 F.3d at 996. Accordingly, for each of Demirdjian's claims, we cannot grant habeas relief unless the California Court of Appeal's decision on that claim was “contrary to, or involved an unreasonable application of” clearly established Supreme Court authority. 28 U.S.C. § 2254(d)(1).¹

This standard is “difficult to meet.” Richter , 562 U.S. at 102, 131 S.Ct. 770. We must “determine what arguments or theories supported or”—for Demirdjian's summarily denied ineffective assistance claim—“co...