UNITED STATES v. GONZALES (2019)

MEMORANDUM **

Valentin Gonzales appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging his conviction for two counts of Aggravated Sexual Abuse of a Minor for touching victim E.A. “not through the clothing.” See 18 U.S.C. § 2246(2)(C). We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for resentencing.

1. The district court erred in denying Gonzales’s claim of ineffective assistance of counsel (IAC) arising from trial counsel’s failure to object to inadmissible testimony on hearsay grounds. An IAC claim requires a showing that counsel’s performance was deficient, and that the deficient performance prejudiced the defense.¹ Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice occurs when counsel’s errors “undermine confidence in the outcome.” Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Strickland, 466 U.S. at 696, 104 S.Ct. 2052 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”). Our prior panel’s determination on direct review—that admission of the evidence “was prejudicial and affected Gonzales’s substantial rights,” Gonzales, 629 Fed. App'x. at 798—required the district court to conclude there was prejudice for purposes of Strickland. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997); accord United States v. Dominguez Benitez, 542 U.S. 74, 81–84, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (citing Strickland in defining prejudice in the plain error context).

The Government argues that, even if admission of the hearsay testimony undermines confidence in the two convictions for Aggravated Sexual Abuse of a Minor (the counts relating to victim E.A.), Gonzales cannot show prejudice. He is serving concurrent 30-year sentences on two counts of Abusive Sexual Contact with a Minor involving a different victim. However, upon our vacatur of the counts involving E.A., the district court has jurisdiction to “resentence him ․ or correct the sentence as may appear appropriate.” See 28 U.S.C. § 2255(b). The decision to “conduct a full resentencing on all remaining counts of conviction ․ rests within the sound discretion of the district court.” Troiano v. United States, 918 F.3d 1082, 1087 (9th Cir. 2019), cert. denied, ––– U.S. ––––, 139 S.Ct. 2729, ––– L.Ed.2d –––– (2019).

2. We decline to consider Gonzales’s uncertified appellate IAC claim, because Gonzales has not made “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Gonzales has no viable appellate IAC claim absent an arguable underlying due process violation. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” (quoting Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982))). We discern no due process issue, because the district court did not force Gonzales to choose between taking the stand and eliciting exculpatory hearsay through cross-examination. Rather, it preserved the possibility of admitting the hearsay under other exceptions to the hearsay rule provided Gonzales “offer[ed] such statements, with advance notice to the Court, outside the hearing of the jury, so the Court can rule on their admissibility at that time.”

REVERSED and REMANDED.

FOOTNOTES

1.   The district court found Gonzales had shown deficient performance under the law of the case doctrine, and the Government forfeited any argument to the contrary. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011). Our prior decision on direct review left open whether trial counsel was deficient for failing to object on hearsay grounds until “a record is made of the reasons for action or inaction of counsel.” United States v. Gonzales, 629 Fed. App'x. 796, 798 n.5 (9th Cir. 2015) (unpublished). Moreover, failing to object to an error deemed “plain” does not necessarily render counsel deficient under Strickland. Thus, the Government was free to argue on collateral review (both before the district court and on appeal) that the determination on direct review did not necessarily compel the court to find counsel was deficient, but failed to do so.