Bradford v. Sisto

FILED
NOT FOR PUBLICATION APR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VAUGHN RAY BRADFORD, No. 08-15418
Petitioner - Appellant, D.C. No. CV-07-00681-CMK
v.
MEMORANDUM *
D. K. SISTO; PEOPLE OF THE STATE
OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
California state prisoner Vaughn Ray Bradford appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
*
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).
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Bradford contends that the district court erred by dismissing his successive
petition pursuant to 28 U.S.C. § 2244(b)(2), (4) because this court previously
granted Bradford’s motion to authorize the district court to consider his successive
petition. However, this did not preclude the district court from determining that
Bradford had not met the requirements for considering a successive petition. See
United States v. Villa-Gonzalez, 208 F.3d 1160, 1164-65 (9th Cir. 2000) (per
curiam).
Furthermore, the district court correctly concluded that, taking as true
Bradford’s new evidence of juror bias, the evidence was not “sufficient to establish
by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.” 28
U.S.C. § 2244(b)(2)(B)(ii) (emphasis added); cf. Babbitt v. Woodford, 177 F.3d
744, 747-48 (9th Cir. 1999) (stating that petitioner’s claim of racial bias on part of
defense counsel amounting to structural error would fail under the standard
applicable to successive petitions at § 2244(b)(2)(B)(ii)).
Because the district court did not err in dismissing the petition, we decline to
address Bradford’s contention that remand to a different judge is required.
AFFIRMED.
2 08-15418