Truitt Moore v. Mike Evans , 476 F. App'x 804 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRUITT MOORE, No. 10-17813
Petitioner - Appellant, D.C. No. 2:09-cv-02737-JFM
v.
MEMORANDUM *
MIKE EVANS,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John F. Moulds, Magistrate Judge, Presiding
Submitted June 12, 2012 **
San Francisco, California
Before: FERNANDEZ, GOULD, and BEA, Circuit Judges.
Petitioner Truitt Moore appeals from the denial of his petition for a writ of
habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we 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).
We review the denial of Moore’s habeas petition de novo. Brown v. Horell,
644 F.3d 969, 978 (9th Cir. 2011). The Antiterrorism and Effective Death Penalty
Act (“AEDPA”) governs this matter. See Lindh v. Murphy, 521 U.S. 320, 322
(1997). We cannot grant federal habeas relief absent a showing that the California
Court of Appeal’s denial of Moore’s claims (1) was contrary to clearly established
Supreme Court case law, (2) involved an unreasonable application of that law, or
(3) was based on an unreasonable determination of the facts in light of the record
before the state court. Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citing 28
U.S.C. § 2254(d)). Moore has not established such error.
The California Court of Appeal did not act contrary to or unreasonably apply
clearly established Supreme Court case law when it held that the state trial court
did not abuse its discretion in denying Moore’s motion for substitution of counsel
pursuant to People v. Marsden, 2 Cal. 3d 118 (1970). Moore’s trial counsel stated
that Moore was informed as to his maximum sentencing exposure. Further,
Moore’s own testimony at his Marsden hearing showed that Moore understood that
the five-year sentence was what he expected to get after trial, not his understanding
of the maximum sentence he could receive by statute.
We also decline to expand the certificate of appealability to consider
Moore’s claims that the trial court unconstitutionally imposed an increased
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sentence. A review of the record makes clear that Moore has not made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). We dismiss this uncertified issue for lack of jurisdiction. Doe v.
Woodford, 508 F.3d 563, 569 (9th Cir. 2007).
AFFIRMED.
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