Ernesto Arellano v. Raymond Madden ( 2015 )

FILED
NOT FOR PUBLICATION DEC 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO ARELLANO, No. 12-17495
Petitioner - Appellant, D.C. No. 2:10-cv-02684-DAD
v.
MEMORANDUM*
RAYMOND MADDEN, acting Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, Magistrate Judge, Presiding
Submitted December 7, 2015**
San Francisco, California
Before: KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.
The California Court of Appeal reasonably concluded that admitting
informant Bowie’s testimony did not violate Arellano’s Sixth Amendment rights.
The Supreme Court has found the admission of informant testimony to be
*
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).
page 2
unconstitutional only where the informant gathered incriminating statements while
acting as an agent of the state. See Maine v. Moulton, 474 U.S. 159, 163, 176
(1985); United States v. Henry, 447 U.S. 264, 270, 273 (1980). Here, the state
court properly determined that Bowie was not a state agent. The police told Bowie
that they couldn’t provide any consideration in exchange for incriminating
information that Bowie obtained from inmates. They also reminded Bowie that the
decision to pass information to law enforcement would be “solely up to him.” And
Bowie testified that he gathered information without any expectation of leniency or
benefits.
Arellano cannot obtain relief under Ninth Circuit case law finding a
constitutional violation based on an implicit agreement between police and an
informant. See Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004).
Circuit precedent does not constitute “clearly established [f]ederal law, as
determined by the Supreme Court” that a state court is required to follow. See
Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) (quoting 28 U.S.C. §
2254(d)(1)).
AFFIRMED.