UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ZANE DICKINSON, No. 20-15175 Petitioner-Appellant, D.C. No. v. 3:18-cv-08037- MTL DAVID SHINN, Director; ATTORNEY GENERAL FOR THE STATE OF ARIZONA, OPINION Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Argued and Submitted November 19, 2020 Phoenix, Arizona

Filed June 22, 2021

Before: Richard C. Tallman, Jay S. Bybee, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Bade 2 DICKINSON V. SHINN

SUMMARY *

Habeas Corpus

The panel affirmed the district court’s denial of Zane Dickinson’s habeas corpus petition challenging his Arizona state court conviction for attempted second-degree murder in a case in which the trial court misstated Arizona law in its instructions to the jury by implying that a defendant could be guilty of attempted second-degree murder if he merely intended to cause serious physical injury, not death.

Trial counsel failed to object to the erroneous instruction. With different counsel, Dickinson unsuccessfully challenged the error on direct appeal. He petitioned for state post-conviction relief, but his counsel did not raise any claims related to the instructional error, and the state trial and appellate courts denied relief. The district court denied Dickinson’s federal habeas corpus petition, declining to excuse Dickinson’s procedural default of these claims.

In this appeal, Dickinson asked this court to excuse his procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), so that he could seek habeas relief on the basis of constitutionally ineffective assistance of trial counsel (IATC).

Dickinson asserted two theories in an effort to establish prejudice and excuse the procedural default.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DICKINSON V. SHINN 3

He argued that his trial counsel’s failure to object prejudiced him because it deprived him of a more favorable standard of review on direct appeal. Rejecting this theory on a different ground than the district court did, the panel held that as a matter of federal law, Dickinson cannot satisfy Strickland’s prejudice requirement for his IATC claim merely by showing that trial counsel’s failure to object to a jury instruction deprived him of a more favorable standard of review on direct appeal.

Dickinson also argued that his IATC claim is substantial because his trial counsel’s failure to object to the erroneous instruction prejudiced him at trial. The panel noted that the record amply supports the Arizona Court of Appeals’ characterization of the trial, and held that Dickinson cannot demonstrate a reasonable probability that the trial would have had a different outcome without the erroneous instruction, where the jury heard overwhelming evidence that Dickinson intended to kill the victim, it heard only a few passing comments that it could have conceivably construed as evidence that Dickinson did not intend to kill the victim, and neither the State nor defense counsel ever suggested that Dickinson intended only to cause serious physical injury.

COUNSEL Molly A. Karlin (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant. Jillian B. Francis (argued) and Jason D. Lewis, Assistant Attorneys General; J.D. Nielsen, Habeas Unit Chief; Mark 4