Jon Holm v. Fernando Gonzalez

FILED
NOT FOR PUBLICATION MAY 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JON CHARLES HOLM, No. 12-55197
Petitioner - Appellant, D.C. No. 2:09-cv-05401-GW-RCF
v.
MEMORANDUM *
FERNANDO GONZALEZ, Warden,
Acting Warden, California Correctional
Institution at Tehachapi, California,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 10, 2013 **
Pasadena, California
Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.
Petitioner Jon Charles Holm appeals the district court’s denial of his habeas
corpus petition challenging his conviction of committing two lewd acts upon a
*
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).
child in violation of California Penal Code § 288(c)(1). The district court granted a
Certificate of Appealability as to Holm’s claim that the California Court of
Appeal’s conclusion that his Sixth Amendment right to notice of the charges
against him was not violated was contrary to or an unreasonable application of
clearly established federal law. Holm contends that the state trial court’s decision
to permit an amendment to change the last date of the charged conduct violated
that constitutional right. He also presents uncertified claims. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253, review de novo, Lopez v. Thompson, 202
F.3d 1110, 1116 (9th Cir. 2000) (en banc), and affirm.
Under the Antiterrorism and Effective Death Penalty Act of 1996, we grant
habeas relief based on a claim that was adjudicated on the merits in state court
proceedings if the last reasoned state court decision addressing the claims—here,
the California Court of Appeal’s 2009 decision—was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2). Applying the deferential review required
in habeas corpus proceedings, we cannot conclude that the California Court of
Appeal’s decision, which determined that Holm had adequate notice of the charges
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asserted against him based upon evidence presented at his preliminary hearing and
the amendment had no impact upon the substantive crimes with which he was
charged, meets the requirements set forth in 28 U.S.C. § 2254(d). See Gautt v.
Lewis, 489 F.3d 993, 1004 (9th Cir. 2007) (“[T]he substance of the information . . .
must in some appreciable way apprise the defendant of the charges against him so
that he may prepare a defense accordingly.”).
In order to broaden a certificate of appealability, Holm must make a
“substantial showing of the denial of a constitutional right” with respect to his
uncertified claims, 28 U.S.C. § 2253(c)(2), by demonstrating that (1) the issues are
debatable among jurists of reason, (2) the court could resolve the issues differently,
or (3) the questions are adequate to deserve encouragement to proceed further.
Mendez v. Knowles, 556 F.3d 757, 770-71 (9th Cir.2009) (internal quotation marks
omitted). Because Holm has not made such a showing, we decline to broaden the
certificate of appealability to include his uncertified claims. See id. at 771.
AFFIRMED.
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