FILED
NOT FOR PUBLICATION JUL 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES EUGENE EDWARDS, No. 11-16332
Petitioner - Appellant, D.C. No. 3:08-cv-02841-WHA
v.
MEMORANDUM*
GARY SWARTHOUT, Warden,
Respondent - Appellee.
DAVID E. EDWARDS, No. 11-16337
Petitioner - Appellant, D.C. No. 3:08-cv-02842-WHA
v.
GARY SWARTHOUT, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted March 15, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, FISHER and NGUYEN, Circuit Judges.
California state prisoners James Edwards and David Edwards appeal the
district court’s denial of their 28 U.S.C. § 2254 habeas petitions. The court has
been informed that James Edwards died on March 21, 2013. His appeal is
dismissed as moot. See Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003).1 With
respect to David Edwards’ petition, we have jurisdiction under 28 U.S.C. §§ 1291
and 2253, and we affirm.
1. Appellant’s briefing failed to address or apply the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which sets
forth the applicable, highly deferential substantive standard for federal habeas
review of state cases. The opening brief did not mention or discuss the last
reasoned state court decision, nor did appellant include this decision in the excerpts
of record. Appellant neither argued nor demonstrated why the state court
proceeding “resulted in a decision that 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 why the state
court proceeding “resulted in a decision that was based on an unreasonable
1
Even if his appeal were not moot, we would affirm the district court’s
denial of James Edwards’ habeas petition for the same reasons we affirm the denial
of David Edwards’ petition.
2
determination of the facts in light of the evidence presented in the State court
proceeding,” id. § 2254(d)(2). Instead, appellant simply sought de novo review of
his constitutional claims. Issues not discussed in the opening brief are deemed
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).
Accordingly, any argument that appellant is entitled to relief under AEDPA is
waived.
2. Even if the issues were preserved, appellant has not satisfied AEDPA’s
highly deferential standard. Both the California Court of Appeal and the state
habeas court looked to appellant’s course of conduct both before and after the
arraignment, noting his refusal to enter a plea, to waive time, to retain counsel after
several continuances or to accept court appointed counsel before finally opting to
represent himself. The state habeas court found that in “these circumstances” there
was “no denial of a formal arraignment” or “denial of counsel at arraignment, and
the trial court was justified in entering a plea of not guilty [without prejudice] on
their behalf.” This conclusion was not contrary to or an unreasonable application
of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Hamilton v. Alabama,
368 U.S. 52 (1961); see also Bell v. Cone, 535 U.S. 685 (2002); United States v.
Cronic, 466 U.S. 648 (1984); United States v. Wade, 388 U.S. 218 (1967). Nor
3
was it based on an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d)(2).
CASE NO. 11-16332 DISMISSED AS MOOT.
CASE NO. 11-16337 AFFIRMED.
4