FILED
NOT FOR PUBLICATION MAY 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID MICHAEL LEON, No. 09-15897
Petitioner - Appellant, D.C. No. 3:07-cv-05719-CRB
v.
MEMORANDUM *
JAMES A. YATES, Warden, Pleasant
Valley State Prison; JAMES E. TILTON,
Director, CDOC,
Respondents - Appellees,
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted May 11, 2010 **
San Francisco, California
*
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).
Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***
David Leon appeals from the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition. We review de novo the district court’s decision to deny a
habeas petition and review its factual findings for clear error. McMurtrey v. Ryan,
539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas may only be granted if the state
court’s decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. 2254(d)(2). The
standard of review is “highly deferential . . . [and] demands that state court
decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19,
24 (2002) (per curiam) (internal quotation marks omitted).
Leon was not denied his rights to due process or a fair trial or to present a
defense when the trial court excluded evidence of third-party culpability. The
evidence Leon wanted to present was extraordinarily vague and tenuous, and its
exclusion was therefore not contrary to nor an unreasonable application of federal
***
The Honorable Patricia C. Fawsett, United States Senior District
Judge for the Middle District of Florida, sitting by designation.
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law. The “slow nod” evidence is not probative, especially considering that
William Wall later said he was not sure if Blaine Buscher knew he was referring to
the murder victim, nor if Buscher’s nod indicated his responsibility for the murder.
The other evidence about a man with a green army jacket was also too attenuated
to be probative.
The dismissal of Juror No. 6 during deliberation for not being truthful during
voir dire did not violate Leon’s constitutional rights. Under the AEDPA, unless
Leon can prove otherwise by clear and convincing evidence, the trial judge’s
factual findings as to the bases for the dismissal are entitled to a presumption of
correctness. We agree with the district court that Leon cannot clear this hurdle,
especially in light of the other jurors’ testimony indicating Juror No. 6’s strong
bias and his answers to the voir dire questions in which he affirmed that he had no
bias for or against police officers.
To demonstrate ineffective assistance of appellate counsel, Leon must show
that counsel’s representation was objectively unreasonable and that this deficient
performance prejudiced him in his appeal. Strickland v. Washington, 466 U.S.
668, 687 (1984). Leon did not demonstrate that his appellate counsel’s conduct
was objectively unreasonable, or that he was prejudiced by his counsel’s conduct.
The strategy was not objectively unreasonable because People v. Son, 79 Cal. App.
3
4th 224, 240-241 (Cal. Ct. App. 2000), precludes the argument that the trial court
should have admitted the testimony; there were other issues that were stronger, and
winnowing out weaker arguments is a hallmark of effective appellate advocacy;
appellate counsel’s review of the tape of the testimony led her to conclude that the
statement was not coerced; and the expert testimony only went to the weight of the
evidence, not admission of the evidence, and the allegedly coerced statement was
later recanted by the witness. In any event, Leon was not prejudiced by his
counsel, as evidence of Leon’s guilt was substantial and the reliability of his
father’s testimony was thoroughly challenged at trial by counsel.
Although the district court did not certify Leon’s final question, we certify
the question and hold that Leon was not denied due process and his right to
juvenile adjudication by a 17-year pre-accusation delay. He demonstrated no
actual prejudice resulting from the delay. All of the allegedly lost evidence and
testimony was purely speculative and not critical to his defense. Despite the delay,
the trial court conducted a fitness hearing, and found Leon unfit to be tried as a
juvenile. Given that the murder occurred only one week before Leon’s eighteenth
birthday, and that the presumption in murder cases is that a minor will be unfit for
juvenile adjudication, the state court’s conclusion was not contrary to nor an
unreasonable application of federal law.
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AFFIRMED.
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