Fairchild v. Wright , 362 F. App'x 851 ( 2010 )

Menu:

                                                                           FILED
NOT FOR PUBLICATION                             JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROGER KIM FAIRCHILD,                             No. 07-35388
Petitioner - Appellant,            D.C. No. CV-99-00338-BLW
v.
MEMORANDUM *
LARRY WRIGHT, Warden, South Idaho
Correctional Inst.,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted January 12, 2010 **
Seattle, Washington
Before: KLEINFELD, TASHIMA and TALLMAN, Circuit Judges.
Roger Kim Fairchild, an Idaho state prisoner, appeals the district court’s
denial of his habeas corpus petitioner. We have jurisdiction under 28 U.S.C. §
2253(a). We affirm.
*
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).
We review de novo the district court’s denial of a petition for habeas corpus.
Lewis v. Mayle,

391 F.3d 989

, 995 (9th Cir. 2004). Because Fairchild filed his
federal habeas petition in 1999, the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) governs Fairchild’s claims. 28 U.S.C. 2254(d)(1); see also
Penry v. Johnson,

532 U.S. 782

, 792 (2001).
Under AEDPA, a federal court may not grant a state prisoner’s habeas
petition with respect to any claim adjudicated on the merits unless the relevant
state-court decision (1) “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States” or (2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).
In order to establish that a state court decision is “contrary to … clearly
established Federal Law, as determined by the Supreme Court” the petitioner must
either show that the state court applied “a rule that contradicts the governing law
set forth in [Supreme Court] cases” or that the state court confronted “a set of facts
that are materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme Court] precedent.”
Williams v. Taylor,

529 U.S. 362

, 406 (2000). A state court unreasonably applies
federal law when it correctly identifies the governing rule but is “objectively
2
unreasonable” in its application of federal law to the facts of the prisoner’s case.

Id. at 407-10.

The district court correctly denied Fairchild’s petition for a writ of habeas
corpus. First, the Idaho courts reasonably applied federal law in determining that
Fairchild was not entitled to disclosure of the identities of the confidential
informants for purposes of preparing for trial or for the suppression hearing. The
identities of the confidential informants were not relevant to Fairchild’s trial
defense against the possession offenses, because the informants’ statements were
used only to support the probable cause determination for the underlying search
warrant. See Roviaro v. United States,

353 U.S. 53

, 59–61 (1957). Nor was
Fairchild entitled to disclosure of the confidential informants’ identities at the
suppression hearing, because probable cause did not rely on their identities,
McCray v. Illinois,

386 U.S. 300

, 312 (1967), and Fairchild did not make a
sufficient preliminary showing that disclosure would tend to prove that the
underlying affidavit was intentionally or recklessly false in stating that a
“controlled buy” had occurred, Franks v. Delaware,

438 U.S. 154

, 171-72 (1978).
Second, the Idaho Court of Appeals reasonably applied federal law in
determining that the identities of the unnamed police officers, the disclosure of
which would reveal the identity of at least one confidential informant, were also
3
protected by the confidential informant’s privilege. United States v. Napier,

436 F.3d 1133

, 1136 (9th Cir. 2006).
Finally, we affirm the district court’s finding that the state court’s denial of
petitioner’s motion to continue the suppression hearing did not deprive petitioner
of due process, because petitioner filed multiple motions, each of which the court
ruled on, and because petitioner’s lawyer was dilatory in filing a request to
examine the evidence. See Ungar v. Sarafite,

376 U.S. 575

, 589 (1964). We also
reject petitioner’s probable cause claim because he had a full and fair opportunity
to litigate the claim in state court. See Stone v. Powell,

428 U.S. 465