FILED
NOT FOR PUBLICATION JUN 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO OCTAVIO PENA, No. 11-15003
Petitioner - Appellant, D.C. No. 4:07-cv-02119-PJH
v.
MEMORANDUM*
JAMES E. TILTON, in his capacity as
Head of the California Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted June 10, 2014**
San Francisco, California
Before: O’SCANNLAIN, FERNANDEZ, and BEA, Circuit Judges.
Sergio Octavio Pena appeals the district court’s denial of his petition for
habeas corpus, brought pursuant to 28 U.S.C. § 2254.
*
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).
Pena first argues that the state court’s determination that the admission of
gang-related evidence did not violate his federal due process rights was contrary to
clearly established federal law. But the Supreme Court has never issued a “clear
ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due
process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough,
568 F.3d 1091, 1101 (9th Cir. 2009). Dawson v. Delaware held that the admission
of sanitized gang evidence during sentencing violated the First Amendment. 503
U.S. 159, 168 (1992). So there was no clearly established federal law for the state
court’s determination to contravene.
Pena next contends that the state trial court’s failure to provide certain jury
instructions violated his rights to a jury trial and to due process. He does not
dispute, however, that he procedurally defaulted this claim.
To excuse his procedural default, Pena maintains that his appellate counsel
rendered ineffective assistance by failing to raise the issue on direct appeal. There
is, at least, a reasonable argument that appellate counsel’s decision—to omit a
weak issue that would have undermined Pena’s primary argument on appeal—was
not constitutionally unreasonable. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th
Cir. 1989). Given the “doubly” deferential standard of review, Harrington v.
2
Richter, 131 S. Ct. 770, 788 (2011), we cannot say that the state court
unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984).
Because Pena cannot demonstrate cause to excuse his procedural default, we
will not review the jury instruction issue. See Coleman v. Thompson, 501 U.S.
722, 729–30 (1991).1
AFFIRMED.
1
We decline to address Pena’s uncertified cumulative error argument. See
28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999).
3