UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEDDY BRIAN SANCHEZ,

Petitioner

- Appellant,

v. RONALD DAVIS, Warden, San Quentin State Prison, Respondent

- Appellee. No. 16

- 99005
D.C. No. 1:97

- cv - 06134

- AWI

- SAB Eastern District of California, Fresno
ORDER

Before: GOULD, CALLAHAN, and BEA, Circuit Judges. The Memorandum Disposition filed on April 22, 2021, is WITHDRAWN and REPLACED with an amended Memorandum Disposition filed concurrently with this order. With that amendment, t he panel unanimously vote s to deny the petition for panel rehearing. Judges Gould and Callahan vote to deny the petition for rehearing en banc and Judge Bea so recommends. The full court was advised of the petition for rehearing en banc . A judge requested a vote on whether to rehear the matter en banc , and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en ban c consideration. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc is DENIED. Future 

# FILED

FEB 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

petitions for rehearing are PERMITTED under the deadlines set out in Federal Rules of Appellate Procedure 35(c) and 40(a)(1).
IT IS SO ORDERED .NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEDDY BRIAN SANCHEZ, Petitioner

- Appellant,

v. RONALD DAVIS, Warden, San Quentin State Prison, Respondent

- Appellee. No. 16

- 99005
D.C. No. 1:97

- cv - 06134

- AWI

- SAB

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding Argued and Submitted July 13, 2020 San Francisco, California Before: GOULD, CALLAHAN, and BEA, Circuit Judges. Teddy Sanchez appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254

. 1 We grant Certificates of Appealability on the previously uncertified issues pertaining to ineffective assistance of counsel. 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 3 6

- 3.

1 In a separate opinion, filed concurre n tly with this memorandum disposition, we discuss the facts of this case and affirm against the three previously certified issues and one previously uncertified issue (“Claim 48”)

. 

# FILED

FEB 10 2022 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 U.S.C. § 2253(c)(2); s ee Browning v. Baker , 875 F.3d 444, 471 (9th Cir. 2017)

. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 , and we affirm

. We address each of Sanchez’s ineffective assistance of counsel claims in turn. First, Sanchez argues that his counsel was ineffective in failing to investigate the shoeprint evidence from the Bocanegra home (“Claim 10”) . The evidence of three sets of shoeprints found in the house, rather than two, however, does not demonstrate that counsel ’s failure to introduce it constituted ineffective assistance. See Matylinsky v. Budge , 577 F.3 d 1083, 1097 (9th Cir. 2009) (a habeas petitioner “cannot show prejudice for [ counsel’s ] failure to present what is most likely cumulative evidence.”). The evidence suggests that three perpetrators participated in the murders, a fact already known to the trial court through the handprint evidence. People v. Sanchez , 12 Cal. 4th 1 , 18 (1995 ). Under our doubly deferential review, Harrington v. Richter , 562 U.S. 86, 105 (2011) , we cannot say that counsel’s performance was deficient. Sanchez also argues that counsel provided ineffective assistance when he declined to cross

- examine news reporter Michael Trihey after Trihey testified that Sanchez claimed to be a “triple murderer ” (“Claim 15”). Sanchez reportedly told Trihey that he did not kill anyone but neve rtheless believed that he was equally responsible because he assisted and made no effort to stop the murders. If counsel had cross - examined Trihey further, there is not a reasonable probability of a3 different outcome because these statements supported his liability as an aider and abetter

. See Sanchez , 12 Cal. 4th at 33

– 36; see also Fields v. Woodford , 309 F.3d 1095, 1107

– 08 (9 th Cir. 2002) ( requiring that a petitioner “demonstrate that the

errors actually prejudiced him”) (internal citation omitted) (emphasis in original). Sanchez argues that his attorney provided ineffective assistance during the guilt phase by failing to inve stigate and present a mental state defense, including information regarding a history of substance abuse (“Claim 6”)

. Counsel interviewed two mental experts, whose reports came to similar conclusions, neither of which was helpful to the defense. There is a reasonable argument that counsel satisfied Strickland’s deferential standard here. Richter , 562 U.S. at 105. Counsel cannot be faulted for not considering other possible mental state defenses when the experts he hired did not do so. See Turner v. Cal deron , 281 F.3d 851, 876 (9th Cir. 2002). Sanchez asserts that his counsel was ineffective for failing to challenge Hernandez’s credibility and memory by presenting his history of drug use (“Claim 7”)

. But Sanchez’s statements to the police and Trihey, hi s sale and possession of items from the Bocanegra residence, and his desire to plead guilty demonstrate that even if counsel had known of Hernandez’s drug use and cross

- examined him about it, it is still likely that the trial court would have convicted San chez and would have found the multiple

- murder special circumstance true. Strickland v. Washington ,4 466 U.S. 668, 688 (1984). Next, Sanchez argues that counsel was ineffective for failing to submit evidence regarding lingering doubt or to counter the prose cution’s evidence of Sanchez’s culpability during the penalty phase (“Claim 44”)

. But fairminded jurists could conclude that Sanchez’s defense counsel acted reasonably in declining to present the lingering

- doubt defense that Sanchez now says should have been presented . The United States Supreme Court has stated that there are “countless ways to provide effective assistance in any given case

. ” Strickland , 466 U.S. at
689 . J urists of reason could conclude that Sanchez’s defense counsel acted

reasona bly in presenting a defense theory that accounted for Sanchez’s consistent desire to plead guilty and accept the death penalty, which was inconsistent with a lingering

- doubt defense. See id . at 673 ( stating that counsel reasonably may “decide[] not to pre sent and hence not to look further for evidence” on an issue ). Nor has Sanchez “demonstrate[d] that the [decision not to present a lingering

- doubt defense] actually prejudiced him” in this case. Fields , 309 F.3d at
1107

– 08. To demonstrate prejudice, Sanchez must show a “reasonable probability” of a different result. See Strickland , 466 U.S. at 694. Put differently, in circumstances where a habeas petitioner challenges a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the
sentencer .

. . would have concluded that the balance of aggravating and mitigating5 circumstances did not warrant death.” Id. at 695. T here is no “reasonable probability” of a different result in this case where Sanchez had substantial involvement in the murder of three pe ople , laughed with his co

- conspirators about the murders , and told the press he was a triple murderer

. The testimony Sanchez

no w argues should have been introduced would have g iven only a slightly different version of events : one in which Sanchez did not participate in " stabbing ” the victim Mrs. Bocanegra, but instead just bashed her head with a metal bar in order to quiet her.
De spite Sanchez’s contentions to the contrary (“Claim 46”) , counsel’s failure to object or introduce Sanchez’s proposed evidence of remorse was not objectively unreasonable and does not demonstrate deficient performance. Strickland , 466 U.S. at 686

– 88. Att orneys need not engage in activities that would be fruitless, much less harmful to the defense. Richter , 562 U.S. at 108. The news articles Sanchez pointed to contain aggravating information and demonstrate that there was little evidence of Sanchez’s rem orse, other than his own statements. Although Detective Boggs erroneously attributed an incriminating statement by Reyes to Sanchez, Sanchez could not show prejudice. See Fields , 309 F.3d at
1107

– 08. A lleged juror statements s uggested that Sanchez’s demeanor at trial had a significant impact on their belief that Sanchez showed no remorse

. AFFIRMED.