Christopher Lundin v. S. Kernan ( 2014 )

FILED
NOT FOR PUBLICATION JUL 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER LUNDIN, No. 11-56425
Petitioner - Appellant, D.C. No. 2:06-cv-01271-ABC-
MAN
v.
S. KERNAN, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted July 8, 2014**
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Christopher Lundin appeals from the district court’s denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. Lundin argues that his Confrontation
Clause and due process rights were violated when the state trial court admitted
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th 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).
-2-
evidence of gang graffiti linking him to the crime and permitted expert testimony
regarding the graffiti. He also contends that his trial counsel was ineffective for
failing to object to the graffiti evidence. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253, and we affirm.
Our review is governed by the Antiterrorism and Effective Death Penalty
Act of 1996, which prescribes a highly deferential standard preventing a federal
court from granting relief to a person in custody pursuant to a state court judgment
“with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—(1) resulted in a decision that
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)
resulted in a decision that 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 considering a habeas petition, “we review the last reasoned decision
from the state court, which means that when the final state court decision contains
no reasoning, we may look to the last decision from the state court that provides a
reasoned explanation of the issue.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir.
2014) (internal quotation marks omitted). In this case, the last reasoned decision is
the October 20, 2006, decision of the Los Angeles County Superior Court.
-3-
The state court’s denial of Lundin’s claims was not contrary to or an
unreasonable application of clearly established federal law. The graffiti evidence
and related testimony do not implicate the Confrontation Clause because the
graffiti is non-testimonial. See Crawford v. Washington, 541 U.S. 36, 51–52, 59
(2004).
Nor did the admission of the graffiti evidence violate Lundin’s due process
rights. There were permissible inferences to be drawn from that evidence, such as
that the crimes were gang-related. See Jammal v. Van de Kamp, 926 F.2d 918, 920
(9th Cir. 1991). The evidence did not render the trial “fundamentally unfair.”
Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000).
Further, Lundin has not shown that his lawyer’s performance fell “below an
objective standard of reasonableness” when he failed to object to the graffiti
evidence which, as we already said, was admissible and not unconstitutional. See
Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
AFFIRMED.