Dickinson v. Shinn, No. 20-15175 (Bade with Tallman and Bybee) [Ed. note – This is an Arizona FPD case.] –- The Ninth Circuit affirmed the denial of an Arizona state prisoner’s § 2254 petition, holding that his claim of ineffective assistance of counsel relating to an erroneous jury instruction was not “substantial” under Martinez v. Ryan, 566 U.S. 1 (2012), such that the procedural default of that claim during state postconviction proceedings could be excused.

The petitioner was tried in an Arizona state court for attempted second-degree murder stemming from an altercation with a friend in which he attempted to run the friend down with his truck.  The jury was instructed that it could convict if it found that the petitioner intended to inflict serious bodily injury or to kill.  This is an incorrect statement of Arizona law, but defense counsel did not object.  The jury convicted, and the petitioner was sentenced to 14 years in prison.  On direct appeal, the court held that the instruction was incorrect but that the petitioner did not show that his trial was fundamentally unfair, and so affirmed the conviction.  Postconviction counsel did not raise any claim regarding defense counsel’s failure to object.

In federal court, a magistrate judge appointed counsel for the petitioner and recommended granting relief on the claim of IAC for failing to object to the instruction.  The district judge, however, rejected that recommendation.  The panel affirmed, rejecting two theories of prejudice under Strickland.  First, the panel said that the loss of a more favorable standard of review on direct appeal is not the kind of prejudice that counts under Strickland for assessing the outcome of the trial.  Second, the panel said that because there was overwhelming evidence of the petitioner’s intent to kill, an objection to the jury instruction did not present a reasonable likelihood of a different outcome at trial.  Thus, the panel concluded, the defaulted IAC claim was not “substantial,” and the district court correctly denied the claim as procedurally defaulted.

Kudos to AFPD Molly Karlin for forcing a 35-page opinion on something that the court didn’t find “substantial.”

The opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/22/20-15175.pdf