Lorraine Netherton v. Jane Parnell , 642 F. App'x 687 ( 2016 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              MAR 03 2016
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LORRAINE NETHERTON,                              No. 15-35052
    Petitioner - Appellant,            D.C. No. 2:13-cv-01281-JCC
    v.
    MEMORANDUM*
    JANE PARNELL, Superintendent,
    Washington Corrections Center for
    Women,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    John C. Coughenour, Senior District Judge, Presiding
    Argued and Submitted February 1, 2016
    Seattle, Washington
    Before: KOZINSKI and O’SCANNLAIN, Circuit Judges and ORRICK,** District
    Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable William Horsley Orrick III, District Judge for the U.S.
    District Court for the Northern District of California, sitting by designation.
    Lorraine Netherton appeals the district court’s denial of her habeas petition
    challenging various aspects of her Washington conviction for second-degree
    murder. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
    I
    The Washington Court of Appeals’ dismissal of Netherton’s petition
    constituted an “adjudicat[ion] on the merits” for purposes of the Antiterrorism and
    Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), because the decision
    issued by the court addressed “the substance of the constitutional claim[s]
    advanced,” Lambert v. Blodgett, 
    393 F.3d 943
    , 969 (9th Cir. 2004). That
    Netherton’s claims were disposed of by an order from the Chief Judge, as
    authorized under Washington law, see Wash. R. App. P. 16.11(b), rather than by a
    three-judge panel, is irrelevant as “adjudication necessary to trigger AEDPA
    review is not restricted to any particular form of hearing,” 
    Lambert, 393 F.3d at 967
    . Thus the Washington Court of Appeals’ denial of Netherton’s claims must be
    upheld unless it was “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court of the United
    States” or “was based on an unreasonable determination of the facts” presented. 28
    U.S.C. § 2254(d).
    2
    II
    The Washington Court of Appeals’ disposition of Netherton’s claims under
    Brady v. Maryland, 
    373 U.S. 83
    (1963), and Giglio v. United States, 
    405 U.S. 150
    (1972), warrants AEDPA deference. To establish a Brady violation, “a defendant
    must show that 1) the prosecution suppressed evidence that 2) was favorable to the
    accused and 3) was material.” Barker v. Fleming, 
    423 F.3d 1085
    , 1094 (9th Cir.
    2005). The court’s disposition was a reasonable application of clearly established
    law because Netherton failed to demonstrate that the prosecution had in fact
    suppressed impeachment evidence relating to Detective Denny Gulla or ballistics
    expert Evan Thompson.
    Nor did the district court err in denying Netherton discovery regarding such
    claims. When a state court adjudicates a claim on the merits, “evidence introduced
    in federal court has no bearing on § 2254(d)(1) review.” Cullen v. Pinholster, 
    563 U.S. 170
    , 185 (2011). Netherton was therefore not entitled to discovery because the
    Washington Court of Appeals considered and rejected her Brady challenges on the
    merits.
    III
    The Washington Court of Appeals’ determination that defense counsel’s
    failure to take photographs of Netherton in jail did not amount to ineffective
    3
    assistance of counsel was not unreasonable. Given the evidence that Netherton in
    fact had not suffered significant visible injury, and the fact that any new
    photographs would have been taken days after her encounter with Desiree Rants,
    Netherton failed to demonstrate that there was “a reasonable probability that, but
    for counsel’s unprofessional errors, the result of the proceeding would have been
    different.” Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984). Because the
    Washington Court of Appeals’ conclusion that Netherton suffered no prejudice
    was a reasonable application of law to the facts of the case, the decision must be
    upheld. See 28 U.S.C. § 2254(d).
    IV
    The Washington Court of Appeals’ determination that the State’s drive-by
    shooting charge did not constitute vindictive prosecution was not unreasonable.
    Netherton failed to demonstrate that the prosecutor’s charge was wholly
    unsupported by probable cause, see Bordenkircher v. Hayes, 
    434 U.S. 357
    , 364
    (1978), and there is no indication that the State filed the additional charge solely
    for the purpose of punishing Netherton for exercising a constitutional or statutory
    right, see United States v. Kent, 
    649 F.3d 906
    , 912 (9th Cir. 2011).
    Furthermore, the Washington Court of Appeals determined that Netherton
    was not prejudiced by such a charge. Because the drive-by shooting charge was
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    dropped before trial, and because any negative effect that resulted from its
    presence on the docket was not significant enough to demonstrate that Netherton
    was prejudiced as a result, the court’s determination that Netherton suffered no due
    process violation was reasonable.
    V
    Given the record before the Washington Court of Appeals, no “reasonable
    jurist” could find the Court of Appeals’ assessment of the uncertified issues
    debatable. See Slack v. McDaniel, 
    529 U.S. 473
    , 483–84 (2000). We thus decline
    to expand the certificate of appealability.
    Netherton’s “Motion to File Additional Excerpt of Record,” filed on
    February 4, 2016, is granted.
    AFFIRMED.
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