Petition for Writ of Certiorari — Craig Martin Shults, Petitioner v. United States

APPENDIX A

Case: 20-56246, 05/15/2023, ID: 12715529, DktEntry: 51-1, Page 1 of 5

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH HAYMORE,

Petitioner-Appellant,

No.

20-56246

D.C. Nos.

v.

UNITED STATES OF AMERICA,

MAY 15 2023

8:19-cv-00361-JLS

8:12-cr-00090- JLS-2

MEMORANDUM *

Respondent-Appellee.

PAUL LICAUSI,

Petitioner-Appellant,

v.

No.

20-56247

D.C. Nos.

8:19-cv-00416-JLS

8:12-cr-00090-JLS-3

UNITED STATES OF AMERICA,

Respondent-Appellee.

CRAIG MARTIN SHULTS,

Petitioner-Appellant,

v.

No.

20-56299

D.C. Nos.

8:19-cv-00587-JLS

8:12-cr-00090-JLS-1

UNITED STATES OF AMERICA,

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

*

Case: 20-56246, 05/15/2023, ID: 12715529, DktEntry: 51-1, Page 2 of 5

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Submitted May 11, 2023**

Pasadena, California

Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District

Judge.

Joseph Haymore, Paul LiCausi, and Craig Shults (collectively, “Petitioners”)

were convicted of wire fraud in a joint trial for participating in a fraudulent real estate

investment scheme. Before trial, Haymore and LiCausi moved to sever their case

from Shults’s, claiming that their defenses would be mutually antagonistic. Shults

agreed. The district court denied the severance motion without prejudice, but the

Petitioners never renewed the motion. They raised their severance arguments on

direct appeal, but because they failed to renew their severance motion, we deemed

their claim waived. United States v. Shults, 730 F. App’x 421, 423 (9th Cir. 2018).

Appealing the district court’s denial of 28 U.S.C. § 2255 relief, the Petitioners

now challenge the district court’s conclusion that their trial attorneys’ failure to

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Yvette Kane, United States District Judge for the

Middle District of Pennsylvania, sitting by designation.

***

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renew the severance motion did not constitute ineffective assistance of counsel. To

establish ineffective assistance of counsel, a defendant must “show that counsel’s

performance was deficient” and “that the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The Government

does not challenge the district court’s holding that trial counsels’ performance was

deficient, so we only address the issue of prejudice.

Deficient performance is prejudicial if “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. A “reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “It is not enough for the defendant to

show that the errors had some conceivable effect on the outcome of the proceeding.”

Id. at 693. While the reasonable probability standard is lower than a more-likelythan-not standard, id., the difference between the two standards “is slight and matters

‘only in the rarest case.’” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting

Strickland, 466 U.S. at 697).

“The likelihood of a different result must be

substantial, not just conceivable.” Id.; accord Washington v. Shinn, 46 F.4th 915,

930 (9th Cir. 2022).

The Petitioners have not shown a reasonable probability that a renewed

severance motion would have been successful. In denying the Petitioners’ new trial

motions, the district court rejected the argument that the Petitioners’ defenses were

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so antagonistic that they mandated severance. Given this ruling, it is not reasonably

probable that the district court would have granted a renewed severance motion.

In any event, the Petitioners have not shown a reasonable probability that the

standard for requiring severed trials was met. “To be entitled to severance on the

basis of mutually antagonistic defenses, a defendant must show that the core of the

codefendant’s defense is so irreconcilable with the core of his own defense that the

acceptance of the codefendant’s theory by the jury precludes acquittal of the

defendant.” United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).

“Antagonism between defenses is insufficient; the defenses must be antagonistic to

the point of being irreconcilable and mutually exclusive.” United States v. Sherlock,

962 F.2d 1349, 1363 (9th Cir. 1989). “The mere presence of hostility among

defendants or the desire of one to exculpate himself by inculpating the other does

not generate the kind of prejudice that mandates severance.” Id.

Severed trials were not mandated here. Blame-shifting was not each side’s

only defense. As the district court determined, “despite these differences, Petitioners

were united in the defense that none of them were guilty, and that the only guilty

parties were not before the court for trial.”

Moreover, even if the defenses were antagonistic, they were not so “to the

point of being irreconcilable and mutually exclusive.” See id. Finger-pointing by

one defendant did not foreclose that defendant’s guilt—the jury could still have

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found both sides complicit. See id. (“[T]he jury could have believed that both,

neither, or only one of the men had committed the alleged acts. The defense of one

did not necessarily indicate the guilt of the other.”).

Nor have the Petitioners shown a reasonable probability that a renewed

severance motion would have been granted on appeal, where review would have

been highly deferential to the district court. See United States v. Mikhel, 889 F.3d

1003, 1046–47 (9th Cir. 2018). Because the Petitioners have not shown a reasonable

probability that a renewed severance motion would have been granted, their

ineffective assistance of counsel claim fails.

AFFIRMED.

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APPENDIX B

Case: 20-56246, 07/25/2023, ID: 12761460, DktEntry: 55, Page 1 of 2

UNITED STATES COURT OF APPEALS

FILED

JUL 25 2023

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSEPH HAYMORE,

Petitioner-Appellant,

v.

No.

20-56246

D.C. Nos.

8:19-cv-00361-JLS

8:12-cr-00090- JLS-2

Central District of California,

Santa Ana

UNITED STATES OF AMERICA,

ORDER

Respondent-Appellee.

PAUL LICAUSI,

Petitioner-Appellant,

No.

20-56247

D.C. Nos.

8:19-cv-00416-JLS

8:12-cr-00090-JLS-3

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

CRAIG MARTIN SHULTS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No.

20-56299

D.C. Nos.

8:19-cv-00587-JLS

8:12-cr-00090-JLS-1

Case: 20-56246, 07/25/2023, ID: 12761460, DktEntry: 55, Page 2 of 2

Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,* District Judge.

The panel unanimously votes to deny the petition for panel rehearing.

Judge R. Nelson votes to deny the petition for rehearing en banc, and Judges

Hurwitz and Kane so recommend. The full court has been advised of the petition

for rehearing en banc, and no judge has requested a vote on whether to rehear this

matter en banc. Fed. R. App. P. 35.

The petitions for panel rehearing and rehearing en banc are DENIED.

*

The Honorable Yvette Kane, United States District Judge for the

Middle District of Pennsylvania, sitting by designation.

2