Marcus Chavarria v. Jim Hamlet , 472 F. App'x 749 ( 2012 )

FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS DANIEL CHAVARRIA, No. 10-16234
Petitioner - Appellant, D.C. No. 3:01-cv-02242-SI
v.
MEMORANDUM*
JIM HAMLET, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted April 17, 2012
San Francisco, California
Before: GOODWIN, REINHARDT, and MURGUIA, Circuit Judges.
State prisoner Marcus Daniel Chavarria (“Chavarria”) appeals the denial of
his petition for a writ of habeas corpus. He claims that California Evidence Code
Section 1109, which provided for the admission at his trial of certain propensity
evidence, violated his rights to due process and equal protection. He also claims
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that the jury instructions regarding the propensity evidence violated due process,
and that his appellate counsel was ineffective in failing to raise this issue in his
direct appeal from his conviction. We affirm.
The California Court of Appeal rejected Chavarria’s due process and equal
protection challenges to Section 1109 on the merits.1 The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) therefore precludes federal habeas
relief unless 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.” 28 U.S.C. § 2254(d)(1). Because the
Supreme Court has expressly left open the question of whether a state law
permitting the introduction of propensity evidence would violate due process, see
Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991), the state court’s decision rejecting
Chavarria’s due process challenge to Section 1109 cannot have been contrary to, or
an unreasonable application of, clearly established law. See Alberni v. McDaniel,
458 F.3d 860, 866 (9th Cir. 2006). Furthermore, we have upheld the
constitutionality of an equivalent Federal Rule of Evidence permitting the
1
To the extent that Chavarria now asserts that he challenges Section 1109
as applied in his case, this claim was not raised before the state court or the district
court, and is therefore not cognizable on appeal. See Belgrade v. Montana, 123
F.3d 1210, 1216 (9th Cir. 1997).
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introduction of propensity evidence. See United States v. LeMay, 260 F.3d 1018,
1025-26, 1030-31 (9th Cir. 2001) (rejecting due process and equal protection
challenges to Federal Rule of Evidence 414). We cannot now hold to be
unreasonable a state court decision that reached the same result based on the same
reasoning.
The district court dismissed Chavarria’s jury instruction and ineffective
assistance of appellate counsel claims as untimely, concluding that these claims,
which were first raised in federal court well after the statute of limitations imposed
by AEDPA had run, did not “relate back” to Chavarria’s original petition. We
agree with the district court that Chavarria’s case is indistinguishable from that of
the petitioner in Hebner v. McGrath, 543 F.3d 1133 (9th Cir. 2008). Hebner
compels us to conclude that Chavarria’s Section 1109 claims “do not share a
common core of operative fact” with his jury instruction and ineffective assistance
of appellate counsel claims. Id. at 1139. Because these later-asserted claims do
not therefore “relate back” to those in Chavarria’s original petition, they are barred
by AEDPA’s statute of limitations.
AFFIRMED.
3