Dailey v. Martel

FILED NOT FOR PUBLICATION MAR 03 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JAMES E. DAILEY, No. 07-55791 Petitioner - Appellant, D.C. No. CV-05-01504-JTM v. MEMORANDUM * MICHAEL MARTEL, Respondent - Appellee. Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding Submitted: February 16, 2010 ** Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges. California state prisoner James E. Dailey appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. * 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). SM S/Research Dailey contends the trial court violated his right to present a defense and to closing arguments by precluding him from introducing third-party culpability evidence. The state court’s rejection of these claims was neither contrary to, nor an unreasonable application of, clearly established federal law. Dailey fails to show the proffered evidence was admissible under People v. Hall, 41 Cal. 3d 826 (1986). Therefore, its exclusion did not violate his constitutional right to present a defense under Crane v. Kentucky, 476 U.S. 683, 690 (1986), nor his right to closing arguments under Herring v. New York, 422 U.S. 853, 857-63 (1975). Dailey also raises a number of uncertified claims. Dailey has not “made a substantial showing of the denial of a constitutional right” regarding these claims. See 28 U.S.C. § 2253(c)(2); Doe v. Woodford, 508 F.3d 563, 567 (9th Cir. 2007). His motion to expand the certificate of appealability to include these claims is therefore denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). AFFIRMED. SMS/Research 2 07-55791