Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JEFFREY PAUL MARSH, No. 24-5371 D.C. No. Petitioner - Appellant, 2:23-cv-00877-DMC v. MEMORANDUM* DAO VANG, Appellee, TRENT ALLEN, PEOPLE OF THE STATE OF CALIFORNIA, Respondents. Appeal from the United States District Court for the Eastern District of California Dennis M. Cota, Magistrate Judge, Presiding Submitted October 22, 2026** San Francisco, California Before: CALLAHAN, LEE, and KOH, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Jeffrey Paul Marsh (“Marsh”) appeals the federal district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction in California Superior Court for lewd acts on a child and using a minor to pose for sex acts. Marsh raises both certified and uncertified issues on appeal. We have jurisdiction over certified issues pursuant to 28 U.S.C. §§ 1291 and 2253. We decline to expand the certificate of appealability, and we affirm. 1. Marsh argues that the state trial court violated his Sixth Amendment right to effective counsel by denying his Marsden motions to substitute his appointed counsel.1 Marsh appears to argue that the California Court of Appeal (“CCA”) misapplied federal law regarding ineffective assistance and irreconcilable conflicts, and made unreasonable factual determinations when denying his motions.2 The federal district court disagreed and denied Marsh’s habeas petition. We review the federal district court’s denial of a 28 U.S.C. § 2254 petition de novo. Fauber v. Davis, 43 F.4th 987, 996 (9th Cir. 2022). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies 1 People v. Marsden, 465 P.2d 44 (Cal. 1970). 2 In reviewing a habeas appeal we look to the “last reasoned decision” from a state court to determine the rationale for the state courts’ denial of the claim. Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir.) (citation omitted), amended on denial of reh’g, 733 F.3d 794 (9th Cir. 2013) (mem.). The California Supreme Court denied review of Marsh’s petition. Therefore, we look to the last reasoned decision—here, the opinion of the CCA. 2 24-5371 here, we can grant habeas relief for claims adjudicated on the merits only if the state court decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “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)(1)–(2). To bring a claim for ineffective assistance of counsel, under Strickland, a petitioner must show: (1) his counsel committed errors that “fell below an objective standard of reasonableness,” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . . . and when the two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). Marsh first argues that his attorney, John Lyman (“Lyman”), committed several unprofessional errors. The CCA concluded that no errors occurred, relying on Lyman’s contrary representations. Marsh offers no reason to second-guess the CCA’s conclusion. Indeed, because the conclusion was based on credibility, it is afforded significant deference. Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 3 24-5371 1986) (“We can think of no sort of factual finding that is more appropriate for deferential treatment than is a state court’s credibility determination.” (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983))). But even if Marsh could establish that Lyman committed unprofessional errors, Marsh does not show that the alleged errors affected the proceedings.3 Thus, Marsh fails to show that the CCA unreasonably applied Strickland. Marsh alternatively argues that the CCA unreasonably applied our precedent regarding irreconcilable conflicts in Carter v. Davis, 946 F.3d 489 (9th Cir. 2019). But as we explained in Carter: [T]he Supreme Court has never endorsed this line of precedent from our court. It has never held that an irreconcilable conflict with one’s attorney constitutes a per se denial of the right to effective counsel. This proves fatal to [a petitioner’s] claim because AEDPA conditions habeas relief on a determination that the state-court decision unreasonably applied “clearly established Federal law” as pronounced by the U.S. Supreme Court. Id. at 508 (quoting 28 U.S.C. § 2254(d)(1)). Marsh does not cite any subsequent U.S. Supreme Court authority that has adopted our irreconcilable conflict precedent. Thus, Marsh fails to identify any “clearly established Federal law” that 3 Marsh fails to show that even the most serious alleged error—Lyman’s inadvertent disclosure of defense strategy—had any impact on the proceedings. Marsh does not dispute that the prosecutor stopped reading and promptly returned the materials when she realized they were sent inadvertently. Marsh does not point to any evidence suggesting that the prosecution improperly used the defense strategy against him. 4 24-5371 the CCA unreasonably applied. 28 U.S.C. § 2254(d)(1). Marsh also argues that the CCA made unreasonable factual determinations related to Lyman’s effectiveness. Again, the CCA reached these determinations based on Lyman’s contrary representations. Marsh does not explain why the state trial court’s credibility determinations were unreasonable. And while Lyman did state that he “seriously doubt[ed]” he could continue to represent Marsh, the CCA reasonably concluded that Lyman’s concerns were due to Marsh’s difficult behavior, not Lyman’s effectiveness. Thus, Marsh fails to show that the CCA’s decision was based on unreasonable determinations of fact. 2. We next address Marsh’s uncertified issue. Marsh argues that the state trial court’s admission of testimonial evidence describing pornography in Marsh’s possession violated his Fourteenth Amendment due process rights. The federal district court rejected this claim, finding that any alleged error was harmless because there was ample direct evidence of guilt which the jury could have relied on in reaching its verdict. The federal district court declined to certify the issue, finding that Marsh failed to make a substantial showing that his due process right was denied. See 28 U.S.C. § 2253(c)(2)). On appeal, we similarly denied Marsh’s motion to certify this issue. Marsh offers no reason to reconsider these decisions. Therefore, we decline to expand the certificate of appealability to include this claim. 5 24-5371 AFFIRMED. 6 24-5371