NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL EUGENE COUSIN,

Petitioner

- Appellant,

v. CYNTHIA TAMPKINS, Warden,

Respondent

- Appellee. No. 20

- 55840
D.C. No. 5:16

- cv - 00254

- CAS

- MRW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted November 17, 2021

Pasadena, California Before: WARDLAW, PARKER, * * and HURWITZ, Circuit Judges. Dissent by Judge PARKER Paul Cousin appeals the district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus, which asserted ineffective assistance of trial counsel and actual innocence . We have jurisdiction pursua nt to 28 U.S.C. §§ 1291 and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 

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JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

2253, and we affirm. “We review de novo the district court’s denial of [Cousin’s] habeas corpus petition.” Sanders v. Cullen , 873 F.3d 778, 793 (9th Cir. 2017). Our review is governed by the Anti

- Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , 28 U.S.C. § 2254(d). Under AEDPA, we must defer to the last state court’s reasoned decision

— here, the decision of the Superior Court for the County of Riverside

— on any claim that was adjudicated on the merits unless that de cision was: (1) “contrary to, or involved a n unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;

or ” (2) “based on an unreasonable determination of the facts in light of the evidence presen ted in the State court proceeding.” 28 U.S.C. § 2254(d). To establish ineffective assistance of counsel, Cousin must prove: (1) that his trial counsel’s performance was deficient, and (2) that “there is a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different

. ” Strickland v. Washington , 466 U.S. 668, 694 (1984).
1

. The state court denied relief on Cousin’s ineffective assistance of counsel claim solely on prejudice grounds and did not address whether trial counsel’s performance was deficient. A state court “ need not decide whether counsel’s performance was deficient wh en the claim of ineffectiveness may be rejected for lack of prejudice.” Jackson v. Calderon , 211 F.3d 1148, 1155 n.3 (9th3

Cir. 2000 ); see also Strickland , 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient before ex amining the prejudice.”). Under AEDPA’s doubly deferential standard, we cannot conclude that fair

- minded jurists would uniformly agree that the state court’s conclusion that Cousin was not prejudiced by counsel’s performance is “lacking in justification.” White v. Wheeler , 577 U.S. 73, 79 (2015).
T he state court reasonabl y determined that Cousin’s statements to the police

— that Cousin “didn’t rob nobody , ” that the police won’t “find no money on

me , ” and that Rush was the accuser

— were “damning” and “cont extually out of sync with an innocent explanation of the night’s events” because the record does

not explain how Cousin would have know n that Rush was the alleged victim or that money was stolen when he made those statements

. See Sanchez v. Davis , 994
F.3 d 1129, 1143 (9th Cir. 2021) (finding no prejudice in part because the defendant “made incriminating statement s . . . which were admitted in evidence against him”). T he state court also reasonably recognized that pursuing a defense based on Kuyateh’s prostitution would “not necessarily preclude a robbery” because Cousin did not approve of his girlfriend’s prostitution, and thus he may have been motivated to take the money Rush received through the arrangement.
2

. T he California Supreme Court ’s denial of relief on actual innocence grounds did not rest on an unreasonable determination of the facts. E ven assuming4

this claim is cognizable in federal habeas , 1 Cousin failed to sati sfy the “extraordinarily high” standard required for relief , Carriger v. Stewart , 132 F.3d 463, 476 (9th Cir. 1997) (en banc), and “affirmatively prove that he is probably innocent.” Gimenez v. Ochoa , 821 F.3d 1136, 1145 (9th Cir. 2016). While the

state court acknowledged that the evidence adduced at the habeas hearing would have “further eroded” Rush’s credibility and “the likelihood of conviction would be diminished,” it also reasonabl y found that Rush’s incriminating statements “were not undermined” an d the evidence “opens avenues of argument for the [prosecution], as well

. ” Thus, its conclusion that Cousin failed to prove actual innocence was not objectively unreasonable.
AFFIRMED.

1 It is an open question whether actual innocence is a cognizable freestanding claim for federal habeas review. See McQuiggins v. Perkins , 569 U.S. 383, 392 (2013).Paul Cousin v. Cynthia Tompkins , No. 20

- 55840 PARKER, Circuit Judge , dissenting: I respectfully dissent. Paul Cousin was convicted of robbery under California Penal Code § 211 and served eight years in prison

. The conviction was largely based on a 911 report by Cleveland Rush that he had been robbed of $20 by
a “45

- to 50

- year - old black light

- complected male armed with a sharp object.” O n several later occasions , Rush testified under oath that Cousin never robbed him , that no robbery had occurred , and that he had lied in his 911 call. Cousin sought habeas relief, but the state court denied Cousin’s petition, concluding that Cousin had not established ineffective assistance of counsel or actual innocence. After summary denials from the Cal ifornia Court of Appeal and the California Supreme Court, Cousin brought a federal habeas petition assert ing ineffective assistance of counsel and actual innocence claim s , which also were denied

. 1 A magistrate judge issued a recommendation to deny relief, which the district court adopted . Cousin appeals

. Because the state court did not address the deficiency prong, we review it de

novo . See Poyson v. Ryan , 879 F.3d 875, 887 (9th Cir. 2018). To establish

1 Ineffective assistance of counsel claims are analyzed under the two prongs of Strickland v. Washington : (1) whether counsel’s performance fell below an objective standard of reasonableness (the “deficiency prong”), and (2) whether the attorney’s inadequate representation prejudiced the defendant (the “prejudice prong”). 466 U.S. 668 (1984). 

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JAN 19 2022 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 deficiency, a party must show that counsel’s representation fell “ below an objective standard of reasonableness.” Strickland , 466 U.S. at 688. Souley Diallo ’s representation of Cousin fell well below that standard. Diallo failed interview any witnesses, including Cousin’s girlfriend, Kuyateh, who cou ld ha ve testified that she and Cousin were aware that the police were investigating a robbery prior to his arrest. This testimony would have negated statements that Cousin made at the time of his arrest ( see infra at 7 ) , which were the only evidence of guilt offered by the prosecution beyond the initial 911 call

. Additionally, Kuyateh ’s habeas testimony indicated that she could have provided cousin with an alibi covering the period when the alleged robbery occurred. Kuy a t e h ’s failure to sh ow up for a scheduled meeting with Diallo’s investigator does not excuse trial counsel’s failure to interview her. After all, she was not a surprise or missing witness; she was the main witness. There was a two

month interval between the alleged “robbery” and the trial , and Diallo kn e w where Kuy at eh lived

. A ny reasonabl y diligent attorney would have followed up after the missed meeting. See Rompilla v. Beard , 545 U.S. 374, 387 (2005) (“Counsel must explore all avenues leading to facts relevant to the merits of the case.”) ; see also Howard v. Clark , 608 F.3d 563, 570

- 71 (9th Cir. 2010) (holding that trial couns el “could not reasonably have decided to forego an independent investigation of [a crucial] witness who might have provided strong support for [petitioner’s] claim of3 innocence .”). Additionally, trial counsel ’s trial strategy was unreasonable . Diallo focused the entire defense case on Rush’s recantation from the preliminary hearin g

— that he had called the police so that they could help him get the $20 back that he lent Cousin . This explanation is nonsensical, and Diallo offered the jury no reasonable explanat ion for why R ush reported a robbery in the first place. Trial c ounsel’s d e cision not to put on a single defense witness but instead to rely on the inconsistent statements of an unreliable narrator (Rush) was not a reasonable “ strategic ” decision because it was not based on an adequate investigation. See Bemore v. Chappell , 788 F.3d 1151, 1165 (9th Cir. 2015) ( “c ounsel can hardly be said to have made a strategic choice when s/he has not yet obtained the facts on which a decision could be made.” ). Trial counsel assumed that Kuyateh would not be a credible witness because she was a prostitute without ever interviewing her . He similarly assumed that Cousin would be worse off by pursuing the “prostitution angle”

— despite the fact that the story provid ed a plausible motive for Rush’s 911 call. T hese decisions might hav e been “ strategic ” if trial counsel had done any preparation , but “ [w] hen defense counsel merely believes certain testimony might not be helpful, no reasonable basis exists for deciding not to investigate.” Duncan v. Ornoski , 528 F.3d 1222, 1235 (9th Cir. 2008)

. In sum, trial counsel “had insufficient facts on4 which to make any reasonable assumptions or on which to base any reasonable decision as to the appropriate defense or defenses to be offered .” R ios v. Rocha , 299 F.3d 796, 806 (9th Cir. 2002). A basic investigation would ha ve informed trial counsel and allowed him to present proof that there was no robbery, no victim, no witnesses, no weapon , and no proceeds

. Accordingly, I conclude that Cousin has met his burden of showing that Diallo’s performan ce was deficient

. To establish prejudice under the Strickland analysis , a party must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. Becaus e the

state court reach ed the prejudice prong, we review its analysis under 28 U.S.C. § 2254(d)

. 2 Under these circumstances, we may not grant habeas relief unless the state court’s adjudication “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 “resul ted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in

2 The “first step” in determining whether to give deference under § 2254(d) is to determine the relevant state

- court decision. See Amado v. Gonzalez , 758 F.3d 1119, 113 0 (9th Cir. 2014 ). Under the “look through” doctrine, this Court looks “to the last reasoned decision ” that resolved the claim to determine whether that claim was adjudicated on the merits. See Ylst v. Nunnemaker , 501 U.S. 797, 804 (1991). Here, the superior court denied Cousin’s claims in 2018 in a reasoned decision. The C alifornia C ourt of A ppeal and C a lifornia S upreme C ourt then summarily denied the same claims. Thus, this Court “looks through” those later summary denials to the superior court’s reasoned decision. See Cannedy v. Adams , 706 F.3d 1148, 1156 (9th Cir. 2013). Because the superior court deni ed Cousin’s ineffective assistance of counsel claim on prejudice grounds, the prejudice element is subject to § 2254(d). Porter v. McCollum , 558 U.S. 30, 39 (2009).5 the State court proceeding.” 28 U.S.C. § 2254(d). I conclude that the state court’s decision was ba sed on an unreasonable determination of the facts. The state court unreasonably failed to grapple with a host of facts prese n ted at the habeas proce e ding

. Rush , the supposed victim, testified at least nine teen times under oath that he was never robbed

— by Cousin or anyone else. In fact,
R

ush ap ologized to Cousin on the witness stand for lying about the robbery and for causing his arrest

. That should have been the end of the matter. Multiple disinterested witnesses offered testimony at the habeas proceeding that corroborated the prostitution arra ngement. Taken together, there was a plethora of evidence that despite the initial 911 call, no robbery ever occurred. The lower court also unreasonably failed to engage with the fact that Rush’s initial report to police about the robbery was pockmarked with inconsistencies. O n the 911 call , Rus h identified his assailant with only a physical description and no

name , despit e the fact that he had known Cousin for many years. Rush lied to the 911 dispatcher about his own name, and that he was not where he told the dispatcher he would be when the police arrived

. Then, when the police arrested Cousin, Rush asked them not to pres s charges. Rush testified under oath on at least
nineteen occasions

— seven times during the preliminary hearing and at least twelve times during trial

— that he had lied in his 911 call and that Cousin never robbed him. The testimony of multiple disinterested witnesses at the habeas6 proceeding corroborated Rush’s previously untold story about the prostitution arrangement

. Because n one of these facts we re mentioned, much less analy zed , by the state court , i t was unreasonable for it to conclude that Cousin had r obbed Rush. In denying habeas relief , the state court made much of what it referred to as Cousin’s “damning” statements that it saw as “contextually out of context with an innocent explanation of the night’s events.” The statements at issue are: (1) that after being detained, Cousin spontane ously said, “I ain’t robbed nobody”; (2) that when the officer asked why Cousin mentioned robbery, he replied , “It ain’t that hard to figure out”; (3) that Cousin shouted to Kuyateh : “Roosevelt’s trying to say that I robbed him” (while the officer had not identified the alleged “ victim ” ) ; and (4) that after being searched, Cousin told the officer “you didn’t even find no money on me,” even though the officer had not mentioned that money was the property allegedly taken

. It is not disputed that , apart from the original 911 call and these statements, there was no other evidence of Cousin’s guilt. B u t n o reasonable adjudicator could conclude that th is evidence prove d beyond a reasonable doubt that Cousin robbed Rush , especially where ther e was overwhelming evi dence to the contrary . In any event, far from “damning,” these statements make sense when read alongside Kuyateh’s sworn declaration that before Cousin made those statements “the police stopped us and asked me if I made a 911 call.” The court therefore unr easonably7 failed to appreciate that Cousin had already learned that the officers were investigating a robbery before he spoke with them. Further, the state court unreasonably determined that it was not prejudicial to Cousin that Diallo did not present th e prostitution story at trial. M ultiple disinterested witnesses offered testimony at the habeas proceeding that corroborated Rush’s previously untold story about the prostitution arrangement

. The state court unreasonably determined that even if the prostitution story had been presented i t would not have changed the outcome because it did not “refute the period of time in which Rush and petitioner were outside of the motel room.” The state court was mistaken. Had the prostitution stor y been presented to the jury, it would have provided Cousin with proof that he was elsewhere when Rush’s 911 call alleged the crime occurred. Moreover, the trial court’s discussion of “the period of time in which Rush and petitioner were outside of the mot el room” focuses on an irrelevant period of time. The time period to which the court refers ( in which Rush and Cousin were outside the motel room when Kuyateh was on her first “date” with a client ) was before 12:15 a.m. Kuyateh testified that she was with Cousin from 12:15 a.m. to 1:00 a.m. According to Rush’s phone call to 911, the “crime” occurred around 12:45 a.m. Consequently, if Kuyateh had testifie d , the jury would have heard Cousin’s alibi for the time at which the crime supposedly occurred. Neverthe less, the court elected to speculate ( with no8 evidentiary support ) that

— despite the fact that Kuyateh’s testimony would have placed Cousin away from the scene at 12:45 am (the time that Rush said the crime occurred during the 911 call)

— a robbery may have n evertheless occurred before
12:15 am because Cousin and Rush were “perhaps together” earlier in the evening

. In other words, it was unreasonable for the state court to draw factual conclusions based on speculation that a robbery could have occurred at time that differed from the time reported to the police by Rus h , the purported victim. Thus , I conclude that there is a reasonable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been different. Strickland , 466 U.S. at 694; Frantz v. Hazey , 533 F.3d 724, 735 (9th Cir. 2008) (en banc). T he government’s case against Cousin was essentially nonexistent. As noted, the government’s case involved a “ robbe ry ” with no victim , no weapon, no proceeds, and no witnesses

. Had trial counsel performed at the appropriate level of professio n al competence in investigating and defending this case, I would have little difficulty concluding that Cousin would have been acquitted

. For these

reasons, I would hold that Cousin has established that he is entitled to habeas relief on his ineffective assistance of counsel claim , and I would r everse the judgment of the district court and remand with instructions to grant Co usin a writ of habeas
corpus.