NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD QUILOPRAS, No. 10-15240
Petitioner - Appellant, D.C. No. 5:05-cv-04516-JW
v.
MEMORANDUM*
JAMES A. YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted June 10, 2014
San Francisco, California
Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.
Richard Quilopras appeals the district court’s denial of his petition for a writ
of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The California Court of Appeal determined that the trial court did not violate
double jeopardy principles when it declined to apply collateral estoppel to bar
Quilopras’s prosecution. This determination was not contrary to or an unreasonable
application of clearly established Supreme Court precedent. 28 U.S.C. §
2254(d)(1). Because the two trials did not involve the same defendant, Ashe v.
Swenson, 397 U.S. 436 (1970), did not control. What is more, the Supreme Court
has rejected the application of nonmutual collateral estoppel in criminal cases.
Standefer v. United States, 447 U.S. 10 (1980).
The California Court of Appeal determined that the exclusion of evidence
regarding James Murphy’s acquittal did not deprive Quilopras of his right to
confront witnesses or present a complete defense. This determination was not
contrary to or an unreasonable application of clearly established Supreme Court
precedent. 28 U.S.C. § 2254(d)(1). Unlike the evidence at issue in Crane v.
Kentucky, 476 U.S. 683 (1986), and Delaware v. Van Arsdall, 475 U.S. 673
(1986), which would have helped the jury evaluate the credibility of a witness,
evidence of Murphy’s acquittal would not have helped the jury evaluate Dennis
Agan’s credibility. The trial court relied on well-established state evidentiary rules
to exclude this evidence. Moses v. Payne, 555 F.3d 742, 757–59 (9th Cir. 2009).
2
The State argues that Quilopras has failed to exhaust his new ineffective
assistance of counsel (“IAC”) claim. But AEDPA requires a petitioner to exhaust
only “remedies still available at the time of the federal petition.” Franklin v.
Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002) (internal quotation marks omitted).
Quilopras cannot return to state court to raise his new IAC claim because it would
be time-barred. In re Clark, 855 P.2d 729, 760 (Cal. 1993). As a result, the new
IAC claim is exhausted. Franklin, 290 F.3d at 1231. Because the State did not raise
the issue of procedural default before the district court, it has forfeited the issue
here. Id. at 1229–31. We therefore review this claim de novo. Scott v. Ryan, 686
F.3d 1130, 1133 (9th Cir. 2012) (per curiam), cert. denied, 134 S. Ct. 120 (2013).
Quilopras can show neither deficient performance nor prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Quilopras had at his disposal all of the
evidence bearing on credibility that was before the jury that acquitted Murphy. The
trial court’s ruling merely prevented Quilopras’s lawyer from arguing to the jury
that a different jury in a different proceeding may have reached a certain
conclusion on a shared issue. The trial court’s ruling did not impede effective
assistance of counsel. Accordingly, the district court properly rejected Quilopras’s
new IAC claim.
3
The California Court of Appeal decided that the admission of Agan’s
testimony did not violate Quilopras’s due process rights. The court found that
nothing in the record suggested that Agan had been coerced to do anything but tell
the truth. In addition, the court found that the evolution in Agan’s story was
attributable to the length of time between the murder and the resolution of the
crime, Agan’s history of substance abuse, and the fact that Agan likely felt freer to
admit the extent of his own involvement only after securing the plea bargain. This
determination of the facts was not unreasonable in light of the evidence presented,
28 U.S.C. § 2254(d)(2), and the state court’s decision to allow Agan’s testimony
was not contrary to or an unreasonable application of clearly established Supreme
Court precedent, id. § 2254(d)(1).
The California Court of Appeal determined that the trial court did not
deprive Quilopras of his right to testify on his own behalf when it ruled that the
State could impeach Quilopras with his prior murder conviction. This
determination was not contrary to or an unreasonable application of clearly
established Supreme Court precedent. Id. In Luce v. United States, 469 U.S. 38
(1984), the Supreme Court held that “to raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must testify.” Id. at 43.
4
Quilopras did not testify at trial. As a result, he has not preserved for review his
claim of improper impeachment.
AFFIRMED.
5