Saesee v. McDonald, No. 10-15895 (8-5-13)(Noonan with O'Scannlain and N. Smith).
Petitioner's counsel, in a state murder case, gave an opening statement where he said that he was "counting" on a witness to corroborate what another witness would say. This just wasn't just any witness: it was the girlfriend, who was the alibi witness, and the corroborating witness would be the girlfriend's grandfather, who was "mad as hell" because teh granddaughter was subpoenaed. Well, at trial, the defense rested without calling the grandfather (the granddaughter did testify). Was this "promise" to the jury for corroboration IAC? Surprisingly, in an issue of first impression, the 9th holds, well, not here. The 9th recognizes that counsel's promises to the jury about witnesses appearing can be IAC when they are not fulfilled. here, though, the 9th said it really wasn't a promise, but more of a "hope." Counsel hoped that the witness would corroborate. A fine distinction, but one the state court made, and under AEDPA, it must be given deference.