Glenn Spillman v. Vincent Cullen , 587 F. App'x 412 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN B. SPILLMAN, No. 12-15718
Petitioner - Appellant, D.C. No. 3:10-cv-04980-CRB
v.
MEMORANDUM*
VINCENT CULLEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Submitted December 8, 2014**
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
Glenn Barry Spillman appeals the denial by the district court of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The decision by the California Court of Appeal that the state trial court did
not abuse its discretion in excluding certain evidence offered to show third-party
culpability was not unreasonable. See 28 U.S.C. § 2254(d)(1) (allowing habeas relief
only if the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States”). The evidence was excluded under California Evidence Code
§ 352, a neutral evidentiary rule similar to Federal Rule of Evidence 403 that is neither
facially arbitrary nor disproportionate to the purpose it seeks to serve. See Holmes v.
South Carolina, 547 U.S. 319, 324–27 (2006); Mejia v. Garcia, 534 F.3d 1036, 1047
n.5 (9th Cir. 2008). Spillman was not denied the right to a defense because he was
able to present other evidence in support of his third-party culpability defense. See
United States v. Scheffer, 523 U.S. 303, 316 (1998) (rejecting the argument “that the
defendant is denied a fair opportunity to defend himself whenever a state or federal
rule excludes favorable evidence”).
2. Spillman raised two uncertified issues on appeal. Spillman’s arguments are
“construed as a motion to expand” the certificate of appealability, Ninth Circuit Rule
22-1(e), and this motion is denied.
AFFIRMED.
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