FILED
NOT FOR PUBLICATION JAN 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY LEE DUVARDO, No. 09-15283
Petitioner - Appellant, D.C. No. 3:05-cv-05428-MHP
v. MEMORANDUM*
GEORGE GIURBINO,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted December 6, 2010
San Francisco, California
Before: COWEN,** TASHIMA and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
**
The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
Jeffrey Lee Duvardo, who is currently serving two concurrent terms of life
imprisonment for murdering his parents, appeals from the District Court’s denial of
his 28 U.S.C. § 2254 petition. We will affirm.
The District Court properly disposed of Duvardo’s evidentiary insufficiency
claim. See, e.g., Jackson v. Virginia, 443 U.S. 307, 324 (1979); Briceno v.
Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009). In light of the evidence actually
presented at trial (including, among other things, a towel found in the parents’
master bathroom sink stained with Duvardo’s own blood), the California Court of
Appeal reasonably applied United States Supreme Court precedent in determining
that a rational trier of fact could have found proof of guilt beyond a reasonable
doubt.
We likewise agree with the District Court’s rejection of Duvardo’s due
process challenge to the testimony of Supervising Special Agent Mark Safarik
from the FBI’s Behavioral Analysis Unit. “Under AEDPA, even clearly erroneous
admissions of evidence that render a trial fundamentally unfair may not permit the
grant of federal habeas relief if not forbidden by ‘clearly established Federal law,’
as laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101
(9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). The Supreme Court “has not yet
made a clear ruling that admission of irrelevant or overtly prejudicial evidence
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constitutes a due process violation sufficient to warrant issuance of the writ.” Id.
It also has never held that the admission of expert testimony on an ultimate issue to
be resolved by the trier of fact violates the Due Process Clause. See, e.g., Moses v.
Payne, 555 F.3d 742, 761-62 (9th Cir. 2009). It further appears that Agent Safarik
did not expressly or directly identify Duvardo as the actual killer in his testimony
(and, on the contrary, told the jury that he never identifies a particular offender).
Finally, Duvardo claims that his due process rights were violated because of
the admission of purportedly irrelevant yet prejudicial bigamy evidence. We have
previously indicated that the United States Supreme Court has not yet ruled on the
specific question of whether the admission of propensity evidence violates the Due
Process Clause (and, on the contrary, has expressly refrained from deciding this
question). See, e.g., Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006).
In any case, it appears that the California Court of Appeal reasonably determined
that the bigamy evidence was admissible to show motive, and the District Court
appropriately determined that any error here would have been harmless because
this evidence did not have a substantial and injurious effect on the jury’s verdict.
See, e.g., Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).
AFFIRMED.
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