NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

JOHN HAROLD LUEBBERS,

Petitioner-Appellant,

 v.

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION; JAMES

ROBERTSON, Warden, Solano State

Prison,

Respondents-Appellees.

No. 19-17566

D.C. No. 

2:15-cv-02348-MCE-KJN

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted March 9, 2022 

San Francisco, California

Before: THOMAS, McKEOWN, and GOULD, Circuit Judges.

Petitioner John Harold Luebbers appeals the district court’s denial of his

habeas petition under 28 U.S.C. § 2254. We review the district court’s denial of a

FILED

MAR 15 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
§ 2254 petition de novo. Carter v. Davis, 946 F.3d 489, 501 (9th Cir. 2019). The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies here. 

We have jurisdiction under 28 U.S.C. § 2253(a). We affirm. Because the parties

are familiar with the factual and procedural history, we need not recount it here.

1. We decline to consider petitioner’s claim that the totality of trial

counsel’s conduct entirely failed to subject the prosecution’s case to meaningful

adversarial testing under United States v. Cronic, 466 U.S. 648 (1984), because the

issue was not presented to the district court and was raised for the first time on

appeal. Smith v. Richards, 569 F.3d 991, 995 (9th Cir. 2009).

2. The California Court of Appeal reasonably denied petitioner’s

ineffective assistance of counsel claim concerning trial counsel’s concession of

intent to kill and malice in his closing argument. The court reasonably concluded

that trial counsel’s decision to “admit[] what he had to admit” to buy credibility

with the jury was a tactical decision and therefore subject to a “strong

presumption” of “the exercise of professional judgment.” Yarborough v. Gentry,

540 U.S. 1, 8 (2003). The decision was a reasonable application of Strickland v.

Washington, 466 U.S. 668, 687 (1984). AEDPA deference therefore applies and

bars relief. 28 U.S.C. § 2254(d).

3. The California Superior Court reasonably denied petitioner’s

ineffective assistance of counsel claim as to counsel’s conduct at trial. The court
denied petitioner’s claim that his trial attorney was ineffective for not introducing

Detective Strasser’s report because it constituted inadmissible hearsay under state

law, a conclusion we are bound to follow. See Bradshaw v. Richey, 546 U.S. 74,

76 (2005) (“[A] state court’s interpretation of state law . . . binds a federal court

sitting in habeas corpus.”). 

Similarly, the California Superior Court’s conclusion that the preliminary

report of psychiatrist Dr. Schaffer was inadmissible, is a state law question that is

not cognizable in a federal habeas petition. Id.

To the extent petitioner now claims that his attorney was ineffective for

failing to call Dr. Schaffer as a witness, a fair reading of the preliminary report

indicates that it contained both helpful and damaging evidence as to

premeditation—the central issue at trial. “[S]trategic choices made [by counsel]

after thorough investigation . . . are virtually unchallengeable.” Strickland, 466

U.S. at 690. A choice not to present testimony that would open the door to the

introduction of damaging evidence is a strategic choice entitled to deference under

Strickland. Carter, 946 F.3d at 519.

We affirm the judgment of the district court.

AFFIRMED.