Ronald Weaver v. Ken Clark , 540 F. App'x 668 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD ARTHUR WEAVER, No. 12-55423
Petitioner - Appellant, D.C. No. 3:10-cv-00655-LAB-
POR
v.
KEN CLARK, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 30, 2013
Pasadena, California
Before: O’SCANNLAIN and BEA, Circuit Judges, and NAVARRO, District
Judge.**
Petitioner Ronald Arthur Weaver appeals the district court’s denial of his
petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254. He raises four
arguments that the district court erroneously applied a procedural bar to his claims
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gloria M. Navarro, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
of trial-level ineffective assistance of counsel (“IAC”), and asks us to expand his
certificate of appealability (“COA”) to include two additional arguments. We
address each argument and request in turn.
Because Weaver has offered no compelling rebuttal of Ylst’s “look-through”
presumption, we agree with the district court that the California Supreme Court
denied his trial-counsel IAC claims on the independent and adequate state-law
ground of untimeliness. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Considering Weaver’s three and one half year delay between his conviction
and his habeas petition, his is not an “exceptional” case involving an “exorbitant
application” of California’s timeliness rule. See Lee v. Kemna, 534 U.S. 362, 376
(2002). Weaver cannot overcome his procedural default.
Moreover, even if Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v.
Thaler, 133 S. Ct. 1911 (2013), apply to California, Weaver cannot overcome his
procedural default on that basis because his claims of IAC are not “substantial,”
Martinez, 132 S. Ct. at 1320. “[W]e must presume that counsel was competent”
and Weaver has not rebutted “this presumption by showing that [counsel’s]
performance was objectively unreasonable under prevailing professional norms
and was not the product of sound strategy.” Duncan v. Ornoski, 528 F.3d 1222,
2
1234 (9th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 688–89
(1984)).
Finally, Weaver has not made a “convincing showing of actual innocence
enabl[ing him] to overcome [the] procedural bar to consideration of the merits of
[his] constitutional claims.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Even if believed, Weaver’s impeachment evidence does not “give[] rise to
sufficient doubt about the validity of [his] conviction.” Sistrunk v. Armenakis, 292
F.3d 669, 676 (9th Cir. 2002) (en banc) (internal quotation marks and citation
omitted).
Because Weaver cannot overcome the procedural bar, we may not consider
the merits of his habeas petition.
We may broaden a COA only upon “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Hiivala v. Wood, 195 F.3d
1098, 1104 (9th Cir. 1999). Because there is no basis to conclude that the appellate
court overlooked any of Weaver’s Fourth Amendment claims, it could not have
been IAC for counsel not to petition for rehearing. As Weaver’s trial-level IAC
claims are procedurally barred, it was not an abuse of discretion for the district
court to deny an evidentiary hearing.
AFFIRMED.
3