Ty Lopes v. Rosanne Campbell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TY ERIK LOPES, No. 09-15769
Petitioner - Appellant, D.C. No. 2:06-cv-01657-MCE-
CHS
v.
ROSANNE CAMPBELL, Warden and MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted November 3, 2010
Stanford, California
Before: THOMAS and IKUTA, Circuit Judges, and RESTANI, Judge.**
None of Lopes’s numerous claims to this court warrants habeas relief under
28 U.S.C. § 2254. His claims that the prosecutor illegally re-filed the rape and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
special circumstance charges and the trial court erroneously denied motions under
California Penal Code § 995 and § 1118.1 are not properly before us because they
were never certified for appeal. See 28 U.S.C. § 2253(c)(1); Mendez v. Knowles,
556 F.3d 757, 770–71 (9th Cir. 2009). Furthermore, these are state law claims that
are not cognizable on federal habeas review. See § 2254(a); Estelle v. McGuire,
502 U.S. 62, 67 (1991). Lopes’s prosecutorial misconduct claim in relation to the
testimony of Officer Erb also does not support habeas relief because Lopes never
exhausted the claim by presenting it to a state court. See § 2254(b)(1); Scott v.
Schriro, 567 F.3d 573, 582 (9th Cir. 2009). We also deny this claim on the merits.
See § 2254(b)(2). Because Lopes presents no evidence that Officer Erb’s
testimony was false or that the prosecutor knew or should have known it was false,
see Napue v. Illinois, 360 U.S. 264, 265 (1959); Schad v. Ryan, 606 F.3d 1022,
1037 (9th Cir. 2010), it is “perfectly clear” that Lopes does not “raise even a
colorable federal [due process] claim,” Cassett v. Stewart, 406 F.3d 614, 624 (9th
Cir. 2005).
Lopes’s remaining claims are meritless. Because a rational jury could have
found Josh Burroughs’s statements to the police more credible than his later
retractions of those statements, the state court’s denial of Lopes’s sufficiency of the
evidence claim was neither contrary to nor an unreasonable application of Jackson
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v. Virginia, 443 U.S. 307 (1979). See § 2254(d)(1). The state court’s denial of
Lopes’s claim under Brady v. Maryland, 373 U.S. 83 (1963), was likewise not
objectively unreasonable because a Brady violation requires a showing of
“material[ity],” id. at 87, which means “a reasonable probability” that the
suppression of the evidence affected the outcome of the trial, Strickler v. Greene,
527 U.S. 263, 281 (1999). Rather than demonstrating how the prosecutor’s
suppression of the fact that Burroughs recanted his incriminating statements
affected the outcome of his trial, Lopes admits that he learned of this impeachment
evidence at his preliminary hearing, approximately three months prior to trial, and
does not deny that he was able to use the information at trial.
Lopes’s arguments that the state court erred in rejecting his claims of
ineffective assistance of trial and appellate counsel also lack merit. To the extent
those claims were based on counsels’ failure to pursue state remedies, we are
bound by the state court’s determination that relief was not warranted under state
law and thus that Lopes could not show prejudice from the failure. See Bradshaw
v. Richey, 546 U.S. 74, 76 (2005). With regard to Lopes’s claim that his trial
counsel should have obtained discovery on the burglary charges pending against
him in another case, the state court’s decision that Lopes’s speculation as to the
importance of that discovery failed to demonstrate “a reasonable probability that,
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but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” Strickland v. Washington, 466 U.S. 668, 694 (1984), was not an
unreasonable application of Strickland. See § 2254(d)(1).
Lopes’s claims of evidentiary and instructional error also do not warrant
habeas relief. In light of the fact that the Supreme Court has never recognized a
due process right to exclude propensity evidence at trial, see Estelle, 502 U.S. at 75
n.5, and because the admission of such evidence does not violate general principles
of due process, see Mejia v. Garcia, 534 F.3d 1036, 1046–47 (9th Cir. 2008)
(citing Loper v. Beto, 405 U.S. 473 (1972)), the state court’s denial of Lopes’s due
process claim regarding the propensity evidence testimony of Jesse Howlin was
not objectively unreasonable. The state court’s rejection of Lopes’s due process
claim regarding the hearsay testimony of Robert Remlinger was also not
objectively unreasonable, because the testimony went only to a collateral matter
and an evidentiary error can rise to the level of a due process violation only where
it “render[s] the trial fundamentally unfair.” Kealohapauole v. Shimoda, 800 F.2d
1463, 1466 (9th Cir. 1986). Finally, because the trial court gave standard jury
instructions regarding witness credibility, it was not objectively unreasonable for
the state court to conclude that the trial court’s refusal to give Lopes’s requested
perjury instruction “so infected the entire trial that the resulting conviction violates
4
due process.” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)) (internal quotation mark omitted).
Because ineffective assistance of habeas counsel is not a basis for relief on
habeas review, see § 2254(i), and Lopes’s pro se informal brief raised no
meritorious arguments, Lopes’s “Motion Claiming Ineffective Assistance of
Appellate Counsel” is denied.
AFFIRMED.
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