FILED
NOT FOR PUBLICATION MAR 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN EUGENE CLUKE, No. 13-56544
Petitioner - Appellant, D.C. No. 3:11-cv-01896-CAB-
NLS
v.
GARY SWARTHOUT, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted March 4, 2015**
Pasadena, California
Before: GOULD and TALLMAN, Circuit Judges, and KORMAN, Senior District
Judge.***
*
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).
***
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
Norman E. Cluke appeals the district court’s denial of federal habeas relief.
Cluke argues that the California trial court violated his right to testify under the
Fifth, Sixth, and Fourteenth Amendments because the trial court had a
constitutional obligation to ask Cluke personally whether Cluke wished to testify.
Federal habeas relief may not be granted for claims subject to 28 U.S.C. § 2254(d)
unless petitioner shows: (1) that the state court’s decision “was contrary to” clearly
established Supreme Court law, § 2254(d)(1), Williams v. Taylor, 529 U.S. 362,
412 (2000); or (2) that it “involved an unreasonable application of” such law,
§ 2254(d)(1); or (3) that it “was based on an unreasonable determination of the
facts” in light of the record before the state court, § 2254(d)(2). See, e.g.,
Harrington v. Richter, 562 U.S. 86 (2011). Because Cluke has failed to meet this
high standard, we affirm.
First, Cluke points to no clearly established Supreme Court law indicating
that a trial court has a constitutional obligation to personally inquire into a
defendant’s desire to testify, instead Cluke relies on distinguishable out-of-circuit
cases. Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (court of appeals erred
by relying “on the mistaken belief that circuit precedent may be used to refine or
sharpen a general principle of Supreme Court jurisprudence into a specific legal
rule that [the Supreme] Court has not announced”).
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Second, the California Court of Appeal’s factual finding that Cluke knew he
had the right to testify and chose not to do so was a reasonable determination of the
facts in light of the record showing that (a) after Cluke initially expressed a desire
to testify, the trial court explained in open court his right to testify, (b) the trial
court ruled on the prior convictions it would admit for impeachment purposes to
assist Cluke in deciding whether to testify, (c) the trial court provided Cluke and
his attorney a short recess to reconsider whether Cluke wished to testify in light of
the now admissible impeachment evidence, and (d) that Cluke did not again
mention his desire to testify until after the jury found him guilty. Although Cluke
now alleges he never agreed with the recommendation of his trial counsel, Frank
Puglia, to not testify, the state court credited Puglia’s testimony that Cluke’s nod
during the short recess and the fact that Cluke did not again express a desire to
testify until after the jury verdict, left Puglia with the impression he had convinced
Cluke that testifying was a bad idea. Cluke has failed to offer “clear and
convincing evidence” to overcome the presumption of correctness we must accord
the state court’s factual finding. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan,
550 U.S. 465, 473–74 (2007).
AFFIRMED.
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