David Hernandez v. Joseph Mcgrath , 379 F. App'x 601 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID HERNANDEZ, No. 09-15370
Petitioner - Appellant, D.C. No. 2:04-cv-00280-GEB-
GGH
v.
JOSEPH MCGRATH, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted May 12, 2010
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
David Hernandez appeals the district court’s partial denial of his 28 U.S.C. §
2254 habeas corpus petition challenging his California convictions and sentences
arising from two gang shootings. We have jurisdiction pursuant to 28 U.S.C. §§
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1291 and 2253. We review the district court’s denial of the petition de novo,
Fernandez v. Roe, 286 F.3d 1073, 1076 (9th Cir. 2002), and affirm.
Petitioner asserts that the California Court of Appeal unreasonably applied
Chapman v. California, 386 U.S. 18 (1967), by holding that a discovery sanction
imposed on the petitioner was harmless beyond a reasonable doubt. The California
Court of Appeal did not unreasonably hold that any error in connection with the
sanction was harmless beyond a reasonable doubt; the evidence of guilt was very
strong and the alibi defense highly dubious, if not demonstrably false.
For the same reasons, the Court of Appeal did not unreasonably apply
Strickland v. Washington, 466 U.S. 668 (1984), by holding that defense counsel’s
conduct giving rise to the sanctions did not prejudice the defendant, and therefore
did not amount to ineffective assistance of counsel.
Petitioner argues that the California Court of Appeal unreasonably applied
Darden v. Wainwright, 477 U.S. 168 (1986), with respect to the claim that the
prosecutor committed misconduct by referring to excluded evidence during his
closing argument. The California Court of Appeal reasonably rejected the claim
because the prosecutor’s statement was vague and singular; the trial court
immediately instructed the jury to disregard the statement; and there was
overwhelming admissible evidence of petitioner’s gang activities.
2
Finally, petitioner argues that the California Court of Appeal unreasonably
applied Montana v. Egelhoff, 518 U.S. 37 (1996), by holding that the trial court did
not violate due process by excluding a dying declaration that was purportedly
relevant to rebut petitioner’s motive. In light of all of the other evidence of gang
motives for both shootings, including the gang-related statements made before both
shootings in this case, the Court of Appeal reasonably concluded that the
exculpatory value of the dying declaration was low, and its exclusion did not
violate due process.
AFFIRMED.
3