George Pilola v. Craig Koenig ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE A. PILOLA, No. 20-55756
Petitioner-Appellant, D.C. No.
2:11-cv-06029-DOC-SHK
v.
CRAIG KOENIG, Acting Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
J. Ross Carter, Magistrate Judge, Presiding
Argued and Submitted January 13, 2022
Pasadena, California
Before: CLIFTON and M. SMITH, Circuit Judges, and S. MURPHY, III,**
District Judge.
George Pilola appeals the district court’s order denying his petition for habeas
corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we review the district
court’s order de novo, Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Applying
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
this standard, we affirm. Because the parties are familiar with the facts, we do not
recount them here, except as necessary to provide context to our ruling.
Pilola argues that the district court erred by applying deference pursuant to
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the
California Supreme Court’s decision because the California Supreme Court did not
address his claims “on the merits.” See 28 U.S.C. § 2254(d). We disagree. The
California Supreme Court did not provide any reasons for its decision, so we must
“look through” that decision to the California Court of Appeal’s decision absent
some evidence that the California Supreme Court relied on a different ground than
the California Court of Appeal. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); see
also Avila v. Galaza, 297 F.3d 911, 918 & n.6 (9th Cir. 2002). This is true
notwithstanding the fact that the California Supreme Court has held as a matter of
state law that its denial of a petition for review does not signal its agreement with
the Court of Appeal’s decision. See Wilson, 138 S. Ct. at 1196; People v. Davis, 147
Cal. 346, 350 (1905).1 Pilola has not provided any evidence to rebut the look-through
presumption, so we must look to the California Court of Appeal’s decision to
determine the California Supreme Court’s reasoning. See Wilson, 138 S. Ct. at 1195.
The California Court of Appeal held that Pilola “fail[ed] to state sufficient
1
In light of Davis, which addresses the import of the California Supreme Court’s
denial of a petition for review under state law, we deny Pilola’s motion for judicial
notice (Dkt. 15).
2
facts demonstrating entitlement to the relief requested,” and cited People v. Duvall,
9 Cal.4th 464, 474–75 (1995). This explanation leaves open the possibility that the
court denied the petition on procedural grounds (i.e., Pilola’s allegations were too
vague or conclusory) or on the merits (i.e., Pilola’s allegations were satisfactory, but
they failed to make out the elements of a claim pursuant to Brady v. Maryland, 373
U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959)). We must construe
ambiguous state court decisions as decisions on the merits “if such a construction is
plausible.” Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008); see also
Crittenden v. Ayers, 624 F.3d 943, 959–60 (9th Cir. 2010). Here, the construction is
plausible. Therefore, we must construe the California Supreme Court’s decision to
be on the merits and must apply AEDPA deference.
Because AEDPA deference applies, we cannot grant Pilola’s petition unless
the California Supreme 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.” 28 U.S.C. § 2254(d)(1). This requirement
means we may not grant federal habeas relief if a fairminded jurist could agree with
the California Supreme Court’s decision. See Harrington v. Richter, 562 U.S. 86,
101 (2011). When a state court does not provide reasons for its decision, we “must
determine what arguments or theories . . . could have supported[] the state court’s
decision; and then . . . ask whether it is possible fairminded jurists could disagree
3
that those arguments or theories are inconsistent with the holding in a prior decision
of [the United States Supreme] Court.” Id. at 102.
This standard is not satisfied here because a fairminded jurist could conclude
that there was no reasonable likelihood that the unmatched fingerprint, the testimony
about the lack of prints from Detective Inskeep, and the prosecutor’s comments in
closing argument could have affected the jury’s verdict. See United States v. Bagley,
473 U.S. 667, 679 n.9 (1985) (setting forth the materiality standard for a Napue
claim).2
The probative value of the unmatched print is limited. First, the victim—
Pilola’s then wife—testified that the intruder was wearing gloves, so one would not
expect the intruder’s fingerprints to have been on the beer bottle. Second, Pilola does
not allege that the fingerprint was of sufficiently high quality to match anyone. It is
possible it came back as “NO MAKE” because it was of such low quality that it
could not produce a match, not because it affirmatively did not match Pilola. Third,
even if the print conclusively did not match Pilola, it could have been the victim’s
or a store clerk’s, which would not cast doubt on Pilola’s involvement.
2
Because a fairminded jurist could conclude that the unmatched print does not
satisfy Napue’s materiality standard, a fairminded jurist could also conclude that it
does not satisfy Brady’s more demanding materiality standard. See Bagley, 473 U.S.
at 682 (setting out Brady materiality standard); Jackson v. Brown, 513 F.3d 1057,
1076 (9th Cir. 2008) (observing that the materiality standard for a Brady claim is
more stringent than for a Napue claim).
4
On the other hand, the evidence of Pilola’s guilt was strong. The victim
testified that she had “no doubts whatsoever” the intruder was her husband because
she saw his face in the bathroom, she recognized the way he was talking to her, he
had broken down her bedroom door the same way many times before, and when her
and Pilola’s 18-month-old son came into the hallway crying, the intruder picked him
up and was able to quickly comfort him and put him back to sleep the same way
Pilola typically did. Further, minutes after enduring a horrific attack, the victim
called her oldest son, told him that Pilola had attacked her, and asked him to protect
her other children. While it is possible the victim quickly composed herself after the
attack and formulated a plot to frame Pilola as she ran to her neighbor’s house, it is
exceedingly unlikely.
Therefore, considering the record as a whole, a fairminded jurist could
conclude that there was no reasonable probability that the unmatched fingerprint, the
testimony about the lack of prints from Detective Inskeep, and the prosecutor’s
comments in closing argument could have affected the jury’s verdict. As a result, we
must deny Pilola’s petition.3 28 U.S.C. § 2254(d)(1).
AFFIRMED.
3
We deny without prejudice Pilola’s motion for an order allowing his expert to
examine the beer bottle (Dkt. 25).
5