FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORLANDO LOPEZ,

Petitioner-Appellant,

v.

TRENT ALLEN,

∗ Acting Warden of 

Salinas Valley State Prison,

Respondent-Appellee.

No. 19-16606

D.C. No.

3:17-cv-03390-

WHA

OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted December 7, 2021 

San Francisco, California

Filed September 2, 2022

Before: Susan P. Graber and Daniel P. Collins, Circuit 

Judges, and Jennifer Choe-Groves,

** Judge.

∗ William Muniz is no longer the warden of Salinas Valley State 

Prison and is automatically substituted in this case by his successor, 

Acting Warden Trent Allen. Fed. R. Civ. P. 25(d).

** The Honorable Jennifer Choe-Groves, Judge for the United States 

Court of International Trade, sitting by designation.
2 LOPEZ V. ALLEN

Opinion by Judge Choe-Groves; 

Dissent by Judge Graber 

SUMMARY***

Habeas Corpus

The panel affirmed the district court’s denial of Orlando 

Lopez’s habeas corpus petition challenging his California 

conviction for multiple crimes resulting from a shooting at a 

backyard barbecue. 

Lopez raised several ineffective assistance of counsel 

claims under Strickland v. Washington, 466 U.S. 688 (1984), 

and the panel applied AEDPA deference to the state habeas 

courts’ denial of relief.

Lopez argued that trial counsel was ineffective for failing 

to consult, appoint, and introduce evidence at trial from an 

expert on firearms and firearms acoustics. The prosecution’s 

theory of the case was that two shooters, Paul Braden and 

Lopez, participated in the shooting both using shotguns. 

Lopez argued that an expert could have created reasonable 

doubt as to Lopez’s guilt by providing testimony that the 

different sounds described by witnesses suggested that the 

second shooter did not use a shotgun, which would have 

pointed towards Kevin Stone as the second shooter because 

the evidence showed that he carried a .22 caliber rifle. 

Taking as true that trial counsel failed to consult with an 

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LOPEZ V. ALLEN 3

expert at all, the panel held that even assuming that this 

failure fell below an objective standard of reasonableness, it 

did not create the necessary prejudice to warrant relief.

Lopez argued that trial counsel was ineffective for failing 

to introduce expert testimony on the behavior of chronic 

methamphetamine users, which would have demonstrated 

that Stone was prone to impulsive and violent acts and that 

his testimony was unreliable. Noting that Stone’s drug 

addiction and criminal history were made known during the 

trial, the panel held that it was not objectively unreasonable 

for the state habeas court to conclude that trial counsel's 

conduct was not constitutionally deficient and that any error 

that might have occurred did not create sufficient prejudice 

to call into question the outcome of the case.

Lopez argued that trial counsel was ineffective for failing 

to use Stone’s prior inconsistent statements to impeach Stone 

and Sergeant Clements. The panel held that a reasonable 

jurist could conclude that trial counsel’s decision to not 

impeach Stone and Sergeant Clements with the prior 

statements was not objectively unreasonable, and that the 

state court could reasonably conclude that there is not a 

reasonable probability that the outcome of the proceedings 

would have been different if trial counsel had more 

forcefully attempted to impeach them.

Lopez argued that trial counsel was ineffective for failing 

to introduce evidence of the respective heights of those 

involved in the shooting. The panel held that even if trial 

counsel’s failure to address the respective heights fell below 

professional standards, a reasonable jurist could conclude 

that the outcome of the trial would not have been different if 

trial counsel had done so.
4 LOPEZ V. ALLEN

Lopez argued that trial counsel was ineffective for failing 

to request a jury instruction on the need to corroborate 

accomplice testimony. The panel held that a reasonable 

jurist could conclude that any error by counsel in failing to 

request such an instruction was harmless and did not create 

sufficient prejudice to meet the Strickland standard. 

Lopez argued that the cumulative impact of trial 

counsel’s individual deficiencies was sufficiently prejudicial 

to warrant habeas relief. The panel held that because Lopez 

failed to establish multiple errors of constitutional 

magnitude, there can be no accumulation of prejudice 

amounting to a denial of due process or meeting the 

Strickland standard. 

 Dissenting, Judge Graber wrote that Lopez’s trial 

counsel provided ineffective assistance by failing to consult 

with and failing to introduce evidence from an expert in 

firearm acoustics, that no fairminded jurist could reasonably 

conclude that there was no prejudice, and that the California 

courts’ conclusion to the contrary unreasonably applied 

Strickland. 

COUNSEL

Matthew Dirkes (argued), Boersch & Illovsky LLP, 

Oakland, California; Dylan Schaffer, Kerley Schaffer LLP, 

Oakland, California; for Petitioner-Appellant.

Arthur P. Beever (argued), Deputy Attorney General; Peggy 

S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. 

Laurence, Senior Assistant Attorney General; Rob Bonta, 

Attorney General; Office of the Attorney General, San 

Francisco, California; for Respondent-Appellee. 
LOPEZ V. ALLEN 5

OPINION

CHOE-GROVES, Judge:

Petitioner Orlando Lopez, a state prisoner, appeals the 

district court’s denial of his petition for habeas corpus 

brought pursuant to 28 U.S.C. § 2254. Petitioner asserts that 

the California state court unreasonably applied Strickland v. 

Washington, 466 U.S. 688 (1984), in determining that he did 

not receive ineffective assistance of trial counsel. We 

disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted of multiple crimes resulting 

from a shooting at a June 18, 2011 backyard barbecue. Eight 

days prior to the shooting, a fight occurred at a high school 

graduation ceremony involving Petitioner’s brother, 

Leonardo Lopez;1 Josh Gamble; Joseph Armijo; and a group 

called the “Avenue Boyz.” During the fight, Leonardo 

struck Gamble in the eye. Tensions remained high during 

the week following the fight.

On or around June 14, 2011, Petitioner attended a party 

at the home of Leonardo and Leonardo’s then-girlfriend. 

During the party, Anthony Gaston brought a shotgun to the 

home, which he left between some boxes on the porch with 

the intention of retrieving the weapon later. Petitioner was 

standing next to Leonardo when Gaston asked Leonardo for 

permission to leave the gun. Gaston testified that he did not 

see the shotgun again after leaving it at Leonardo’s home.

1 For clarity, Orlando Lopez will be referred to throughout as 

“Petitioner” and Leonardo Lopez will be referred to as “Leonardo.”
6 LOPEZ V. ALLEN

On the day of the shooting, a graduation party was held 

at Leonardo’s home. Members of the Avenue Boyz, Paul 

Braden, and Petitioner were in attendance. During the party, 

Braden argued with Ross Sparks and a woman named 

Crystal Pearls over the phone. Ross Sparks was Gamble’s 

cousin. Witnesses to the conversation testified that they 

overheard Braden say, “Let’s meet up and handle this,” and 

“I’ll kill you. I’ll kill your family.” Petitioner was also 

involved in the conversation and was described by witnesses 

as “pretty irritated” and agitated and overheard attempting to 

arrange a place to fight. A series of aggressive text messages 

were also exchanged in which the sender identified himself 

as “Nano,” a nickname used by Petitioner. Ross Sparks 

claimed that he called the sender, recognized Petitioner’s 

voice, and heard Petitioner threaten to “bash me and my 

family’s face in with the lead pipe that his brother hit 

[Gamble] in the face with.” After the telephone and text 

message exchanges, a group discussed the possibility of 

fighting Ross Sparks.

Petitioner and Braden left the party and returned with a 

black shotgun wrapped in a sweatshirt. Braden then took the 

gun into a garage and removed the weapon’s stock with a 

saw. Petitioner was present for the gun’s alteration. After 

modifying the weapon, Braden made several statements 

suggesting his intent to use the gun, including “I didn’t bring 

this gun to Clearlake for nothing. Let’s go use it,” “I’m 

bored, let’s go shoot somebody,” and “I didn’t bring my gun 

for nothing, we need to go do this.” Braden also expressly 

stated his desire to “[w]alk down to [Ross Sparks’] home and 

start shooting them.” Petitioner was present for these 

statements.

At approximately 7:00 p.m., a man named Kevin Stone 

received a series of text messages from Petitioner’s phone 
LOPEZ V. ALLEN 7

number asking for a ride and stating that he had “a lick” and 

“straps.”2 When the party disbanded between 9:30 p.m. and 

10:00 p.m., Stone and his girlfriend picked up Petitioner and 

Braden. Braden was carrying the shotgun wrapped in a 

sweatshirt when he left the party. Stone testified that 

Petitioner was carrying “something similar” to Braden’s 

gun. One witness testified that Petitioner “wasn’t holding 

anything” when he left the party.

Trial testimony established that Stone was a 

methamphetamine addict and dealer. Stone admitted that he 

used methamphetamines frequently and that, on the day of 

the shooting, he drank multiple alcoholic beverages. After 

picking up Braden and Petitioner, Stone retrieved a 

.22 caliber rifle from his girlfriend’s apartment.

On the same evening, a backyard barbecue was held at 

Ross Sparks’ home. Some participants from the earlier 

graduation fight attended the barbecue. Stone drove 

Petitioner and Braden to the area of Ross Sparks’ home and 

the men entered a neighbor’s backyard. The yards were 

separated by a six-foot-tall wooden fence. Between 

10:30 p.m. and 10:45 p.m., gunshots were fired from the 

fence area into Ross Sparks’ yard. Witnesses described 

seeing muzzle flashes from a notch in the top of the fence 

and a gap in the fence created by two missing boards. The 

shooting resulted in the death of a four-year-old child and 

injuries to five other people. After the shooting, police 

observed holes in the wall of Ross Sparks’ home consistent 

with 9-shot and 15-shot buckshot. They also recovered three 

2 Stone explained at trial that a “lick” is slang for getting something 

for nothing, such as committing a robbery, and “straps” is slang for 

firearms.
8 LOPEZ V. ALLEN

expelled shotgun shells that an expert opined had previously 

been cycled through the same gun.

Stone was interviewed three times following his arrest. 

The first interview occurred on July 1, 2011 with Sergeant 

Clements and Detective Alvarado of the Clearlake Police 

Department. During the interview, Stone did not state 

whether Petitioner or Braden had a gun when they were 

picked up from Leonardo’s home. He identified only Braden 

as having fired shots into Ross Sparks’ yard. A second 

interview of Stone was conducted on November 3, 2011 and 

involved Sergeant Clements, Lake County District Attorney 

Anderson, and Stone’s attorney. Stone again only identified 

Braden as a shooter. Unlike his earlier statement, Stone 

claimed that Petitioner also had a shotgun that he was given 

by Leonardo and that he observed Petitioner pass through the 

fence. Stone told the interviewers that he was unsure if 

Petitioner had fired the shotgun. A third interview of Stone 

was conducted on May 15, 2012 with District Attorney 

Anderson and Stone’s attorney. During the third interview, 

Stone continued to claim that both Petitioner and Braden had 

shotguns and that Braden fired into Ross Sparks’ yard. 

Stone’s account changed from the prior interviews in that he 

stated that Petitioner and Braden both had shotguns when 

they were picked up from Leonardo’s home and that he only 

observed Petitioner stepping away from the fence and could 

not tell if Petitioner stepped through the fence. Prior to trial, 

Stone entered into a plea agreement with the prosecution and 

testified against Braden and Petitioner. As part of the 

agreement, he pled no contest to accessory to murder after 

the fact, conspiracy to commit robbery, and possession of a 

firearm by a prohibited person. The agreement reduced 

Stone’s potential sentence from life in prison to roughly ten 

years of incarceration.
LOPEZ V. ALLEN 9

At trial, after disclosing the plea agreement and his 

immunity, Stone testified that Petitioner and he had 

exchanged text messages on the day of the shooting in which 

Petitioner asked Stone if he was interested in “pulling a lick” 

and claimed to have “straps.” Stone also testified that 

Braden fired several rounds from a shotgun over the fence 

and that he observed Petitioner holding a shotgun, but never 

witnessed it being fired. Stone admitted that his earlier claim 

that he saw Petitioner stepping through the fence was based 

on the preliminary hearing testimony of others, not his own 

recollection of events. Despite this clarification, Stone’s 

prior account was reiterated during the testimony of Sergeant 

Clements.

Descriptions of the shooting provided by other witnesses 

varied considerably. The area around the fence was dark and 

many of the witnesses conceded to being intoxicated or 

otherwise impaired at the time of the shooting. Some 

witnesses testified that the shooting lasted a few seconds. 

One witness believed the shooting to have lasted for several 

minutes. Some of the witnesses described the firearms used 

during the shooting as having different sounds. Other 

witnesses described the shots as sounding similar to one 

another. Two witnesses testified that they could not perceive 

a difference in acoustics because they were in shock and 

their ears were ringing after the first shot. Two witnesses 

attributed the sounds that they described to differences in 

ammunition rather than differences in weapons.

Petitioner was convicted of one count of first-degree 

murder, five counts of attempted murder, six counts of 

assault with a firearm, two counts of mayhem, and one count 

of discharging a firearm at an occupied dwelling. He was 

sentenced to a prison term of 311 years to life. Petitioner 

and Braden appealed their convictions to the California 
10 LOPEZ V. ALLEN

Court of Appeal. The state appellate court reversed 

Petitioner’s first-degree murder conviction under People v. 

Chiu, 325 P.3d 972 (Cal. 2014), superseded by statute on 

other grounds as stated in People v. Lewis, 491 P.3d 309, 

313 n.3 (Cal. 2021),3 ordered that the sentences for mayhem 

be stayed, and affirmed the remaining judgment. People v. 

Lopez, No. A136253, 2016 WL 634651 (Cal. Ct. App. Feb. 

17, 2016) (unpublished).

Petitioner also filed a petition for habeas corpus with the 

California Court of Appeal, raising arguments of ineffective 

assistance of counsel. The court denied the petition by 

summary order on the same day the direct appeal was 

resolved. One justice dissented, concluding “that [Lopez] 

has articulated a prima facie case for relief concerning his 

claim of ineffective assistance of counsel based on trial 

counsel’s failure to present testimony from a firearms expert 

regarding firearms acoustics, warranting issuance of an order 

to show cause.” Petitioner subsequently filed a petition for 

habeas corpus with the California Supreme Court, which 

denied the petition summarily.

Petitioner filed a federal habeas petition under 28 U.S.C. 

§ 2254 with the United States District Court for the Northern 

District of California. The district court denied the petition, 

and Petitioner filed a timely notice of appeal. We remanded 

to the district court to determine whether to grant a certificate 

of appealability, and the district court denied the certificate 

after concluding that “reasonable jurists would not ‘find the 

district court’s assessment of the constitutional claims 

debatable or wrong.’” We proceeded to grant a certificate of 

3 The court found that it was possible that the jury improperly based 

its verdict on that count on the natural and probable cause doctrine of 

aiding and abetting.
LOPEZ V. ALLEN 11

appealability on the issue of “whether trial counsel rendered 

ineffective assistance, including whether counsel was 

ineffective for failing to obtain a firearms expert to testify on 

firearms acoustics.”

STANDARD OF REVIEW

We review the district court’s dismissal of a habeas 

petition de novo. Gulbrandson v. Ryan, 738 F.3d 976, 986 

(9th Cir. 2013). The Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”) applies because the petition 

was filed after April 24, 1996. Woods v. Sinclair, 764 F.3d

1109, 1120 (9th Cir. 2014). Under AEDPA, federal courts 

may grant a writ of habeas corpus only if the state court’s 

adjudication of claims on the merits “resulted in a decision 

that was contrary to, or involved an unreasonable application 

of, clearly established Federal law, as determined by the 

Supreme Court of the United States,” or “was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d).

In Strickland v. Washington, 466 U.S. 668 (1984), the 

Supreme Court defined the “benchmark for judging any 

claim of ineffectiveness” as “whether counsel’s conduct so 

undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just 

result.” Id. at 686. To prevail on a claim of ineffective 

assistance of counsel, Petitioner must establish that his 

counsel’s performance was constitutionally deficient and 

that the deficiency prejudiced the defense. Id. at 687. 

Federal habeas review is highly deferential to the state courts 

and a petition should only be granted to correct “extreme 

malfunctions in the state criminal justice systems.” Greene 

v. Fisher, 565 U.S. 34, 38 (2011) (citation omitted). Relief 

is warranted only when “the state court’s ruling on the claim 
12 LOPEZ V. ALLEN

being presented in federal court was so lacking in 

justification that there was an error well understood and 

comprehended in existing law beyond any possibility for 

fairminded disagreement.” Harrington v. Richter, 562 U.S. 

86, 103 (2011).

DISCUSSION

Petitioner raises several ineffective assistance of counsel 

claims based on: (1) trial counsel’s failure to consult and 

introduce the expert testimony of a firearms and firearms 

acoustics expert; (2) trial counsel’s failure to introduce 

expert testimony on the behavior of chronic 

methamphetamine users; (3) trial counsel’s failure to 

impeach Stone and Sergeant Clements with Stone’s prior 

inconsistent statements; (4) trial counsel’s failure to 

introduce evidence of the respective heights of those 

involved in the shooting; (5) trial counsel’s failure to request 

a jury instruction on the need to corroborate accomplice 

testimony; and (6) the aggregate failure to attempt any of the 

foregoing actions during his representation of Petitioner. 

We are not persuaded by any of the arguments raised.

A. Firearms and Firearms Acoustics Expert

Petitioner’s initial argument is that trial counsel was 

ineffective for failing to consult, appoint, and introduce 

evidence at trial from an expert on firearms and firearms 

acoustics. The prosecution’s theory of the case was that two 

shooters, Paul Braden and Petitioner, participated in the 

shooting both using shotguns. Two pieces of evidence were 

offered in support of Petitioner having a shotgun during the 

shooting. The first was Anthony Gaston’s testimony that 

Petitioner knew that a single-action shotgun was stored on 

the porch of Leonardo’s home, and the shotgun went missing 

after Gaston left it there. The second was Stone’s testimony 
LOPEZ V. ALLEN 13

that he saw Petitioner with a shotgun at the scene of the 

shooting. Petitioner argues that an expert could have created 

reasonable doubt as to Petitioner’s guilt by providing 

testimony that the different sounds described by witnesses 

suggested that the second shooter did not use a shotgun. 

That would have pointed towards Stone as the second 

shooter, because the evidence showed that he carried a 

.22 caliber rifle.

Because the California Court of Appeal and the 

California Supreme Court both summarily denied 

Petitioner’s habeas petition, we must apply AEDPA 

deference to their conclusion that Petitioner did not state a 

prima facie case for relief. See Cullen v. Pinholster, 

563 U.S. 170, 188 n.12 (2011); Nunes v. Mueller, 350 F.3d 

1045, 1054 (9th Cir. 2003). In doing so, “we assume that the 

factual allegations in [Petitioner’s] [state] habeas petition are 

true.” Reis-Campos v. Biter, 832 F.3d 968, 973 (9th Cir. 

2016). Accordingly, we take as true that Petitioner’s trial 

counsel failed to consult an acoustics expert at all. Even 

assuming that this failure fell below an objective standard of 

reasonableness, it did not create the necessary prejudice to 

warrant habeas relief.

In support of his petitions in both the state and federal 

courts, Petitioner offered the declaration of Ben Tisa, a 

firearms expert, which concludes, based on the accounts of 

witnesses, that the second gun used during the shooting was 

a .22 caliber rifle carried by Stone. Witness accounts of the 

shooting varied considerably regarding the number of shots 

fired, the sounds of the weapons, and the duration of the 

event. Though multiple witnesses provided accounts of the 

shooting, Tisa relies primarily on the testimony of only four 

people: Ross Sparks, Josh Gamble, Andrew Sparks, and Ian 

Griffith. In his analysis, Tisa cherry-picks details provided 
14 LOPEZ V. ALLEN

by these witnesses and largely ignores conflicting facts. For 

example, Tisa relies on a statement made by Ross Sparks 

during a preliminary hearing in which Ross Sparks stated 

that he believed one of the weapons to be a lower-sized rifle 

or pistol. Tisa does not acknowledge that at trial Ross Sparks 

testified that he believed both weapons to have been 

shotguns using different types of ammunition. Similarly, 

Tisa discusses Andrew Sparks’ recollection of the number of 

shots fired and the location of the shooters, but does not 

acknowledge that Andrew Sparks attributed the difference in 

sound to the types of ammunition used and testified that he 

was certain that the guns were both shotguns.

Tisa’s declaration suffers from multiple weaknesses that 

would have been readily apparent to a jury and exploitable 

by opposing counsel. Tisa does not acknowledge the 

considerable discrepancy in testimony regarding the sounds 

of the weapons, the number of shots fired, and the duration 

of the shooting. The declaration is largely silent as to the 

fact that multiple witnesses testified to being impaired by 

drugs, alcohol, darkness, or the loud sound of the initial shot. 

Tisa also fails to address whether any acoustic differences 

observed by the witnesses might be attributable to different 

types of ammunition, as was suggested by witnesses during 

the trial. Some of these problems in the witness testimony 

were noted by trial counsel in his closing statement.

The opinions in the declaration that are less dependent 

on witness testimony are also open to scrutiny. Tisa opines 

that a single-action shotgun was unlikely to be the weapon 

used because it could not have been fired more than once 

during the timeframe of the shooting. It is unclear, however, 

how long the shooting lasted because witness testimony 

ranged from a few seconds to three minutes. Regardless, 
LOPEZ V. ALLEN 15

even if Petitioner were only able to fire a single shot, it would 

have been enough to warrant conviction.

Tisa also discounts the possibility of a single-action 

shotgun being used, because he noted that expended shell 

casings consistent with a single-action shotgun were not 

found after the shooting. This opinion fails to consider the 

possibility that Petitioner collected and removed any 

expended shell casings from the scene. In light of Tisa’s 

observation that the slowness of a single-action shotgun is 

the result of expended shell casings requiring manual 

ejection, this possibility would be reasonable.

Because Tisa’s declaration is conclusory, lacks 

consideration of contrary evidence, and fails to address 

counterarguments that are readily apparent, a reasonable 

jurist would not be compelled to find its absence from trial 

sufficiently prejudicial.

Furthermore, the jury at trial was presented with 

considerable evidence to challenge Stone’s partially 

incriminating testimony, in which he asserted that Petitioner 

had a shotgun during the shooting event. The jury was made 

aware of Stone’s drug use, criminal history, prior 

inconsistent statements, and motive to lie. Trial counsel 

emphasized these points to the jury during his closing 

statement. The jury was also aware that Petitioner had a 

possible motive to participate in the shooting and that 

Petitioner involved Stone in the crime by inviting him to 

participate in a robbery and claiming to have guns. 

Considering these facts, a reasonable jurist could conclude 

that there is not a reasonable probability that the outcome of 

the proceedings would have been different if the testimony 

of an expert had been presented.
16 LOPEZ V. ALLEN

B. Methamphetamine Expert

Petitioner argues that the prosecution relied heavily on 

the testimony of Stone and that trial counsel had an 

obligation to highlight evidence that might have suggested 

Stone was the second shooter. He specifically points to trial 

counsel’s failure to present expert testimony on the 

behavioral impact of Stone’s chronic methamphetamine use. 

Petitioner asserts that such testimony would have 

demonstrated that Stone was prone to impulsive and violent 

acts and that his testimony was unreliable.

An attorney’s complete failure to investigate and offer 

evidence in support of defense theories may be 

constitutionally deficient, see Hendricks v. Calderon, 

70 F.3d 1032, 1040 (9th Cir. 1995); however, an attorney is 

not required to offer evidence that is unnecessary or 

redundant, see Bonin v. Calderon, 59 F.3d 815, 837–38 (9th 

Cir. 1995) (recognizing that a reasonable attorney would not 

provide witness declarations or undertake the expense of 

requiring witnesses to travel to merely reiterate facts already 

supported by substantial evidence). Stone’s drug addiction 

and criminal history were made known during the trial. On 

direct examination, Stone conceded that his drug use at the 

time of the shooting was “pretty bad” and “pretty much 

controlled [his] life.” He also admitted to consuming two 

Tilts—an alcoholic energy drink—in the hours leading up to 

the shooting. Trial counsel emphasized Stone’s drug use, 

likely intoxication, and criminal conduct during his closing 

statement. In light of these facts, it was reasonable for the 

California court to conclude that trial counsel’s strategic 

determination to forego the use of an addiction expert was 

not objectively unreasonable.

Furthermore, Petitioner has not demonstrated that he 

suffered prejudice from trial counsel’s choice to not present 
LOPEZ V. ALLEN 17

testimony on Stone’s drug use. As the Supreme Court of 

California has recognized, “[t]he effect of drugs, while 

certainly a proper subject of expert testimony, has become a 

subject of common knowledge among laypersons.” People 

v. Yeoman, 72 P.3d 1166, 1218 (Cal. 2003). Even the expert 

presented by Petitioner in support of his habeas petition 

characterized the association between alcohol and violent 

crime as “well known” in his declaration. The common 

knowledge that drug and alcohol use can impair decision 

making or lead to violent acts would have been known to the 

jurors, regardless of whether such facts were reinforced by 

an expert’s opinion or specific scientific data. It was 

reasonable for the state habeas court to conclude that trial 

counsel’s conduct was not constitutionally deficient and that 

any error that might have occurred did not create sufficient 

prejudice to call into question the outcome of the case.

C. Witness Impeachment

Petitioner contends that trial counsel’s failure to use 

Stone’s prior statements to impeach Stone and Sergeant 

Clements constituted ineffective assistance of counsel. 

Certain details provided by Stone during his three pre-trial 

interviews and in his testimony at trial were inconsistent, 

including whether Petitioner possessed a weapon during the 

shooting and passed through the gap in the fence. Petitioner 

argues that trial counsel’s decision to not address these 

inconsistencies weakened his ability to discredit Stone’s 

unfavorable testimony and prejudiced the defense.

Trial counsel’s strategies, including the treatment of 

witnesses, are entitled to deference on review. Brown v. 

Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008). And because 

we view the state court’s resolution of that question only 

through the lens of AEDPA, our review is “doubly 

deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 
18 LOPEZ V. ALLEN

(2009). The record suggests that trial counsel considered 

Stone to be a mixed witness, offering testimony that was 

both favorable and unfavorable to Petitioner. During his 

cross-examination of Stone, trial counsel elicited from Stone 

a statement that he did not believe that Petitioner fired a 

firearm and that he was “very certain” that Petitioner “was 

not shooting” during the incident. Trial counsel also 

referenced the changing details of Stone’s account, noting 

that it was only after receiving a plea deal that Stone claimed 

that Petitioner had a gun during the shooting. These 

inconsistencies were raised again during trial counsel’s 

closing statement. Trial counsel also stressed that Stone 

consistently stated that Braden was the only person he 

observed shooting into Ross Sparks’ yard. Considering 

these facts, a reasonable jurist could conclude that trial 

counsel’s decision to not impeach Stone and Sergeant 

Clements with Stone’s prior inconsistent statements was not 

objectively unreasonable.

The decision to not impeach Stone and Sergeant 

Clements with Stone’s prior inconsistent statements was also 

not sufficiently prejudicial. As previously noted, the jury 

was well aware of Stone’s drug addiction, criminal history, 

and motivation to lie, which were stressed by trial counsel 

during closing statements. The jury was also aware that 

Stone’s account of the events surrounding the shooting had 

changed. After Sergeant Clements testified that Stone had 

stated in an interview that he had seen Petitioner “coming 

back through an opening in the fence,” Stone himself 

effectively impeached that prior statement by testifying that 

it had been based on the testimony of others at the 

preliminary hearing. Because the jury was in a position to 

weigh the testimony of Stone, the state habeas court could 

reasonably conclude that there is not a reasonable probability 

that the outcome of the proceedings would have been 
LOPEZ V. ALLEN 19

different if trial counsel had more forcefully attempted to 

impeach Stone or Sergeant Clements.

D. Heights of Suspects

Petitioner argues that trial counsel rendered ineffective 

assistance by not introducing evidence regarding the 

respective heights of Braden, Stone, and himself. Gamble 

described the individual shooting over the fence as about six 

feet tall and the individual shooting through the gap in the 

fence as slightly shorter than six feet tall. Petitioner 

contends that Braden is over six feet tall and that Petitioner 

is five feet, six inches tall. Trial counsel established that 

Stone is six feet tall.

Even if trial counsel’s failure to address the respective 

heights of Braden, Stone, and Petitioner during trial fell 

below professional standards, it was not sufficiently 

prejudicial. The jury was provided with Petitioner’s booking 

photo, which reflected his height. The jury was also able to 

directly observe the three men because Braden and Petitioner 

were tried jointly and Stone testified at the trial. The 

reliability of Gamble’s estimation of the shooters’ heights is 

questionable because Gamble conceded that he “wasn’t 

paying that close attention” and that it was difficult to make 

out details of the shooter because of the darkness. Sparks 

also testified that it was difficult to see the shooters and 

opined that they appeared to be kneeling. Additionally, 

substantial other evidence was available for the jury to

consider in determining the identities of the shooters. 

Because Petitioner did not suffer sufficient prejudice, a 

reasonable jurist could conclude that the outcome of the trial 

would not have been different if trial counsel had expressly 

raised the respective heights of Braden, Stone, and 

Petitioner.
20 LOPEZ V. ALLEN

E. Accomplice Testimony Jury Instruction

Under California law, “[a] conviction [cannot] be had 

upon the testimony of an accomplice unless it be 

corroborated by such other evidence as shall tend to connect 

the defendant with the commission of the offense . . . .” Cal. 

Penal Code § 1111. Petitioner contends that trial counsel 

should have obtained a pre-trial ruling on Stone’s 

accomplice status, raised the need for corroboration during 

his opening and closing statements, requested a modification 

of pattern jury instruction 301,4 and requested the use of 

pattern jury instruction 335.5

4 “[Unless I instruct you otherwise,] (T/the) testimony of only one 

witness can prove any fact. Before you conclude that the testimony of 

one witness proves a fact, you should carefully review all the evidence.” 

Single Witness Testimony, Cal. Crim. Jury Inst. 301.

5 If the crime[s] of <insert charged crime[s]> 

(was/were) committed, then <insert name[s] of 

witness[es]> (was/were) [an] accomplice[s] to 

(that/those) crime[s].

You may not convict the defendant of <insert 

crime[s]> based on the (statement/ [or] testimony) of 

an accomplice alone. You may use (a statement/ [or] 

testimony) of an accomplice that tends to incriminate 

the defendant to convict the defendant only if:

1. The accomplice’s (statement/ [or] testimony) is 

supported by other evidence that you believe;
LOPEZ V. ALLEN 21 

The lack of a jury instruction on corroboration of 

accomplice testimony was considered on direct appeal.6 The 

2. That supporting evidence is independent of the 

accomplice's (statement/ [or] testimony); AND

3. That supporting evidence tends to connect the 

defendant to the commission of the crime[s].

Supporting evidence, however, may be slight. It does 

not need to be enough, by itself, to prove that the 

defendant is guilty of the charged crime, and it does 

not need to support every fact (mentioned by the 

accomplice in the statement/ [or] about which the 

witness testified). On the other hand, it is not enough 

if the supporting evidence merely shows that a crime 

was committed or the circumstances of its 

commission. The supporting evidence must tend to 

connect the defendant to the commission of the crime.

[The evidence needed to support the (statement/ [or] 

testimony) of one accomplice cannot be provided by 

the (statement/ [or] testimony) of another accomplice.]

Any (statement/ [or] testimony) of an accomplice that 

tends to incriminate the defendant should be viewed 

with caution. You may not, however, arbitrarily 

disregard it. You should give that (statement/ [or] 

testimony) the weight you think it deserves after 

examining it with care and caution and in the light of 

all the other evidence.

Accomplice Testimony: No Dispute Whether Witness is Accomplice, 

Cal. Crim. Jury Inst. 335.

6 It is unclear, however, from the opinion of the California Court of 

Appeal if Petitioner presented the question in the context of ineffective 

assistance of counsel. The appellate court’s analysis addressed whether

the trial court should have instructed the jury sua sponte. It is only in a 
22 LOPEZ V. ALLEN

California Court of Appeal found that any error in not 

providing an instruction to the jury was ultimately harmless 

because there was ample corroborating evidence connecting 

Petitioner to the crime. Petitioner now argues that the 

California Court of Appeal was wrong because no evidence 

other than Stone’s testimony supported Stone’s claim that 

Petitioner had a gun at the scene of the shooting and was seen 

returning through the gap in the fence after the shooting. 

“The corroborative evidence required by section 1111 

‘need not corroborate every fact to which the accomplice 

testified or establish the corpus delicti, but is sufficient if it 

tends to connect the defendant with the crime in such a way 

as to satisfy the jury that the accomplice is telling the truth.’” 

Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) 

(quoting People v. Fauber, 831 P.2d 249, 273 (Cal. 1992)). 

It “may be slight, entirely circumstantial, and entitled to little 

consideration when standing alone.” People v. Valdez, 

281 P.3d 924, 974 (Cal. 2012). The jury was presented with 

evidence that Petitioner spent the day preceding the shooting 

with Braden, accompanied Braden to retrieve the shotgun, 

was present when Braden modified the shotgun, had a heated 

exchange with Ross Sparks in which Petitioner threatened 

Ross Sparks’ family, had access to a shotgun, and 

accompanied Braden to the scene of the shooting. A 

reasonable jurist could conclude that any error by counsel in 

failing to request jury instructions concerning accomplice 

testimony was harmless and did not create sufficient 

prejudice to meet the Strickland standard. 

footnote that the Court of Appeal addressed whether trial counsel’s 

performance was deficient.
LOPEZ V. ALLEN 23

F. Aggregate of Trial Counsel’s Deficiencies

Petitioner asserts that the cumulative impact of trial 

counsel’s individual deficiencies was sufficiently prejudicial 

to warrant habeas relief. We have previously recognized that 

“the combined effect of multiple trial court errors violates 

due process where it renders the resulting criminal trial 

fundamentally unfair,” Parle v. Runnels, 505 F.3d 922, 927 

(9th Cir. 2007) (citation omitted), and that the elements of 

Strickland can be satisfied through an accumulation of 

multiple instances of deficient performance, see Fairbank v. 

Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011).

As discussed above, the state courts had reasonable bases 

for concluding that no error supported Petitioner’s individual 

claims of ineffective assistance of counsel. The only 

instance in which an error did occur—the failure to provide 

a proper jury instruction—was reasonably deemed to be 

harmless. Because Petitioner has failed to establish multiple 

errors of constitutional magnitude, there can be no 

accumulation of prejudice amounting to a denial of due 

process or meeting the Strickland standard. United States v. 

Solorio, 669 F.3d 943, 956 (9th Cir. 2012) (“There can be no 

cumulative error when a defendant fails to identify more 

than one error.” (citation omitted)); Hayes v. Ayers, 632 F.3d 

500, 524 (9th Cir. 2011) (“Because we conclude that no error 

of constitutional magnitude occurred, no cumulative 

prejudice is possible.” (citation omitted)).

CONCLUSION

It is without question that trial counsel did not provide 

ideal representation, but flawless representation is not 

demanded by the Sixth Amendment. Harrington, 562 U.S. 

at 110. It is possible that the state courts might have reached 

different conclusions based on the evidence presented, but 
24 LOPEZ V. ALLEN

our review is limited to the question of whether any 

reasonable argument exists to justify the state court’s 

conclusion that trial counsel’s performance did not violate 

Strickland. Because such arguments do exist for the claims 

raised by Petitioner, we affirm the denial of Petitioner’s 

habeas petition. 

AFFIRMED. 

GRABER, Circuit Judge, dissenting:

I respectfully dissent. In my view, Petitioner’s trial 

counsel provided ineffective assistance by failing to consult 

with and failing to introduce evidence from an expert in 

firearms acoustics. Petitioner was prejudiced by counsel’s 

failure. Accordingly, the state court’s denial of Petitioner’s 

claim was an unreasonable application of Strickland v. 

Washington, 466 U.S. 668 (1984). 

Eyewitnesses’ testimony placed two shooters at the 

fence. It is undisputed that Braden was one of the shooters. 

Who was the second shooter? Petitioner and Stone were 

both arrested in connection with the shooting. 

The evidence at trial suggesting that Petitioner was the 

second shooter was largely circumstantial. For example, on 

June 18, Petitioner had participated in Braden’s angry phone 

exchange with Sparks and had sent threatening text 

messages to Sparks. Petitioner was present both when 

Braden retrieved a shotgun and when Braden sawed the 

stock off it. Finally, Petitioner was at the scene of the 

shooting with Braden and Stone. But only one individual, 

Stone, put Petitioner at the scene with a firearm. 

Specifically, Stone testified that Petitioner had a shotgun that 
LOPEZ V. ALLEN 25

was similar to the one that Braden used, although he testified 

that he never saw Petitioner fire the shotgun.

But there also was strong circumstantial evidence that 

Stone was the second shooter. Before he picked up Braden 

and Petitioner, Stone spent several hours with his girlfriend. 

She testified that before picking them up, Stone had used 

methamphetamines and had consumed four caffeinated 

alcoholic beverages. Before going to the scene of the 

shooting, Stone retrieved his .22-caliber rifle. After the 

shooting, Stone fled and was on the run for two weeks with 

his girlfriend before he was arrested. Although police 

interviewed Stone three times before trial, he did not 

mention that Petitioner allegedly had a shotgun with him 

until the third interview, after which Stone entered into a 

plea agreement reducing his potential sentence from life in 

prison to roughly ten years of incarceration, in exchange for 

his agreement to testify against Braden and Petitioner.

The fact that Stone had a .22-caliber rifle at the scene, 

while Petitioner allegedly had a shotgun like Braden’s, is 

crucial. One witness testified that the weapons used had two 

distinct sounds. The weapon in the gap of the fence 

produced a loud “boom,” while the weapon fired from the 

top of the fence sounded like “a pap, pap . . . like a 

firecracker . . . .” Another witness provided similar 

descriptions. Sparks also testified that the firearms sounded 

different, one with a “big boom sound” and the other with a 

“lower sounding shot.” Sparks’ brother provided similar 

testimony.

Although the majority opinion merely assumes that trial 

counsel’s performance was unreasonable, Maj. Op. at 13, the 

record makes clear that his performance was in fact 

deficient. Stone—the only witness who put Petitioner at the

scene of the shooting with a firearm—testified that Petitioner 
26 LOPEZ V. ALLEN

had a shotgun that was similar to Braden’s. But Stone took 

to the scene of the shooting a firearm that differed from both 

Braden’s shotgun and Petitioner’s alleged shotgun: a .22-

caliber rifle. Given how little solid evidence was available 

to differentiate between the theory that Stone was the second 

shooter and the theory that Petitioner was the second shooter, 

no fairminded jurist could reasonably conclude that 

counsel’s failure to pursue the significance of the different 

sounds of the gunfire was within the range of competent 

performance.

The majority opinion contends that calling an expert on 

firearms acoustics would have undermined defense 

counsel’s choice to attack the eyewitnesses’ credibility. But 

trial counsel did rely on those witnesses’ testimony to argue 

(albeit briefly) that the second shooter used a rifle like 

Stone’s. An expert in firearms acoustics would have 

provided an objective explanation for Stone’s being the 

second shooter, an explanation that was supported by the 

testimony of four witnesses. By contrast, Stone’s testimony 

that Petitioner had a shotgun was uncorroborated, as well as 

intensely self-serving. Counsel chose to rely only on 

supposition to argue that the second shooter had a rifle. That 

choice was objectively unreasonable.

Strickland’s prejudice prong also is satisfied. The 

evidence corroborating Stone’s account was circumstantial 

only, and the remaining evidence against Petitioner was 

weak. Thus, Stone’s credibility was indispensable to the 

prosecution’s case against Petitioner. The California Court 

of Appeal recognized that expert testimony might have 

tipped the scales:

[A]lthough the weight of the evidence 

suggests the firearms sounded different, the 

jury was offered an explanation that was 
LOPEZ V. ALLEN 27

consistent with both weapons being 

shotguns. No other evidence, such as expert 

testimony, contradicted that explanation.

People v. Lopez, No. A136253, 2016 WL 634651, at *28 

(Cal. Ct. App. Feb. 17, 2016) (unpublished) (emphasis 

added). One justice on the California Court of Appeal would 

have granted the petition on this issue. And, indeed, the 

expert presented in this proceeding would have opined that 

the witnesses’ descriptions of the different sounds made by 

the two weapons fired are consistent with the firing of a .22-

caliber rifle and a semi-automatic shotgun and are 

inconsistent with the firing of two shotguns. The majority 

opinion makes much of the fact that Petitioner’s proffered 

testimony of Petitioner’s expert of firearms acoustics 

conflicts with the opinions of some eyewitnesses about the 

nature of the firearms used in the shooting. Maj. Op. at 13–

14. But the conflict between the expert opinion and lay 

opinions is precisely why the expert’s testimony was 

indispensable to Petitioner’s defense. Such expert testimony 

would have created a reasonable doubt about Petitioner’s 

guilt.

On this record, no fairminded jurist could reasonably 

conclude that there was no prejudice. See Hardy v. 

Chappell, 849 F.3d 803, 826–27 (9th Cir. 2016) (concluding 

that the California Supreme Court had applied Strickland

unreasonably in denying habeas relief when counsel had 

failed to present evidence that the State’s key witness was 

the second killer). Accordingly, the California courts’ 

conclusion to the contrary unreasonably applied Strickland.

1

1 Because the California courts unreasonably applied Strickland

with respect to Petitioner’s claim regarding firearms acoustics, I would 
28 LOPEZ V. ALLEN

I would, therefore, reverse and remand.

reverse on that issue alone and would not reach Petitioner’s remaining 

claims.