MEMORANDUM ***
Petitioner Patricia Conklin (Petitioner) appeals the district courts denial of her federal habeas petition. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We have jurisdiction under 28 U.S.C. §§ 2253 and 1291. We review de novo a district courts denial of a habeas petition. Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018).
Petitioner contends that her trial counsel was ineffective by failing to object to the prosecutors motion to redact medical records that were admitted into evidence. The redactions excluded from evidence certain exculpatory statements that Petitioners mother, Margarita Zelada (Zelada), made to medical staff indicating that an accidental fall—rather than a push by Petitioner—caused Zeladas injury. The California Court of Appeal considered and denied this claim on direct appeal. The district court also denied this claim in Petitioners first amended federal habeas petition and entered judgment. We issued a certificate of appealability as to “whether trial counsel rendered ineffective assistance by failing to object to the prosecutors motion to redact medical records admitted into evidence.”
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs our review. See Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under AEDPA, we cannot grant habeas relief unless the state court proceedings resulted in a decision that was (1) “contrary to, or involved an 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 presented in the State court proceeding.” 28 U.S.C. § 2254(d).
As the California Court of Appeal recognized, to prevail on a claim of ineffective assistance of counsel, Petitioner must show both that counsels performance was deficient and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, Petitioner must demonstrate that counsels representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. To prove counsels performance was prejudicial, Petitioner must demonstrate a “reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
Under AEDPA, however, “[t]he pivotal question is whether the state courts application of the Strickland standard was unreasonable. This is different from asking whether defense counsels performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id. (internal quotations and citations omitted). In this regard, “[a] state courts determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state courts decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
1. The California Court of Appeal reasonably concluded that trial counsels failure to object was an acceptable tactical decision because admitting evidence that Zelada slipped would have contradicted and undermined the defense theory of the case. While fair-minded jurists could argue for a different defense theory with the benefit of hindsight, trial counsel raised a defense theory of necessity that contended the stove malfunctioned and Petitioner pushed her mother out of the way to protect her from a fire coming from the stove. As the California Court of Appeal reasonably determined, “[t]rial counsel could have made a reasonable tactical decision not to object to the exclusion of Zeladas statement to doctors that she had accidentally slipped and fallen, since those statements were inconsistent with defendants out-of-court statements regarding the circumstances of the fall that were admitted into evidence ․ [and] would have undermined, rather than supported, the defense theory of the case.” In light of the evidence and defense presented at trial, Petitioner fails to show that this conclusion was unreasonable or an unreasonable application of Strickland’s first prong. See id.
2. The California Court of Appeal also reasonably determined, even assuming deficient performance, Petitioner was not prejudiced by counsels failure to object to the redacted statements because there was no “reasonable” probability the outcome of the trial would have been different in light of the strong evidence in the record, including Petitioners own admissions, that Petitioner pushed Zelada down. See id. at 112, 131 S.Ct. 770 (“The likelihood of a different result must be substantial, not just conceivable.” (citations omitted)). Petitioner fails to show that this conclusion was unreasonable or an unreasonable application of Strickland’s second prong.
Petitioners reliance on Griffin v. Harrington, 727 F.3d 940 (9th Cir. 2013) is misplaced. In Griffin, no evidence supported trial counsels decision not to raise a timely objection, which allowed admission of the only inculpatory evidence against the defendant. Id. at 945–48. Here, however, significant evidence supported trial counsels tactical decision to raise the defense of necessity and corroborated Zeladas statements that Petitioner pushed her down. Zeladas numerous statements to law enforcement and medical personnel that her daughter pushed her down, as well as Petitioners own statements and actions at the scene and afterwards, supported the necessity defense and the California Court of Appeals determination that defense counsels failure to object was not prejudicial. Accordingly, the California Court of Appeal reasonably determined that even if trial counsel was ineffective, that error was not prejudicial.
AFFIRMED.