NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN PATRICK BLACKMON, No. 19-35883
Petitioner-Appellant, D.C. No. 2:16-cv-01592-RSL
v.
MEMORANDUM*
JEFFREY A. UTTECHT, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted September 2, 2020
Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and STEARNS,** District Judge.
John Blackmon appeals the district court’s dismissal of his habeas petition,
challenging his convictions for child molestation in the second and third degree
and rape in the third degree. Blackmon contends that at his third trial (after hung
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
juries led to two mistrials), he was “unaware of his prerogative to assert or waive
[his] right [to testify],” or that he could “overrule his counsel” when she decided
to rest his case without calling him as a witness. Appellant’s Reply Br. at 1, 6.
Blackmon also contends that his Fifth Amendment rights were further violated by
references to his previous trials by the prosecutor and a witness.1 We have
jurisdiction pursuant to 28 U.S.C. § 2254. We review de novo a district court’s
decision to deny a habeas corpus petition, see Dows v. Wood, 211 F.3d 480, 484
(9th Cir. 2000), and review the district court’s subsidiary findings of fact under the
clearly erroneous standard, see Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th
Cir. 1995). We affirm.
The Antiterrorism and Effective Death Penalty Act (AEDPA) places express
limits on the power of a federal court to grant habeas relief to prisoners confined
under a state court judgment and sentence. See 28 U.S.C. § 2254(d). “[A] federal
court may grant habeas relief on a claim ‘adjudicated on the merits’ in state court
only if the decision ‘was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.’” Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (quoting 28 U.S.C. §
2254(d)(1)); see also Bell v. Cone, 535 U.S. 685, 693–94 (2002). A decision is
1
In a third uncertified claim, Blackmon asserts actual innocence of the rape
and molestation charges. Like the district court, we find no merit to this claim. See
Herrera v. Collins, 506 U.S. 390, 400 (1993).
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“contrary to” clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law
or if the state court decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–
13 (2000). Under 28 U.S.C. § 2254(d)(2), a state’s factual findings are entitled to
a presumption of correctness, Demosthenes v. Baal, 495 U.S. 731, 735 (1990), and
a petitioner must rebut these findings by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
1. The state court’s determination that Blackmon knowingly and
voluntarily waived his right to testify was not contrary to clearly established
federal law. The Supreme Court is clear that every criminal defendant has a
fundamental constitutional right to testify on his own behalf that may not be
abrogated by counsel or by the court. Rock v. Arkansas, 483 U.S. 44, 53 (1987).
Indeed, the ultimate decision on whether to testify lies with the defendant. See
Jones v. Barnes, 463 U.S. 745, 751 (1983). However, no Supreme Court authority
requires the type of on-the-record colloquy that Blackmon seeks. The absence of
clearly established Supreme Court precedent dooms Blackmon’s claim.
Recognizing this, Blackmon cites to several of our previous decisions to support
his claim that a more thorough colloquy was necessary to determine whether his
waiver was knowing and voluntary. Blackmon’s reliance on those cases is
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misplaced as the Supreme Court has “repeatedly emphasized” that “circuit
precedent does not constitute clearly established federal law” in the habeas context.
Glebe v. Frost, 574 U.S. 21, 24 (2014) (internal quotations omitted).
Even if we could consider our prior holdings, those cases do not support
Blackmon’s argument. Although a defendant’s waiver of the right to testify “must
be knowing and voluntary, it need not be explicit.” See United States v. Pino-
Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999) (citing United States v. Joelson, 7
F.3d 174, 177 (9th Cir. 1993)). “‘[W]aiver of the right to testify may be inferred
from the defendant’s conduct and is presumed from the defendant’s failure to
testify or notify the court of his desire to do so.’” Id. at 1095 (quoting Joelson, 7
F.3d at 177). A defendant is also “presumed to assent to his attorney’s tactical
decision not to have him testify.” Id.
Here, Blackmon sat silent as his counsel rested. The trial judge “was
looking directly at Mr. Blackmon and his lawyer . . . [when] the defense rest[ed]
and . . . saw . . . nothing visual that occurred that would suggest or support the
notion that [Blackmon] was somehow or other surprised by this decision.” ER 57.
Further, Blackmon had testified at his first trial, and then had declined to testify at
his second trial after an extensive colloquy with the trial judge (who presided at all
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three trials) regarding his right to do so.2 The state court did not unreasonably
apply clearly established federal law in concluding that Blackmon’s decision not to
testify at his third trial was knowing and voluntary.
2. There was no error in the district court’s conclusion that Blackmon had
failed to exhaust his Fifth Amendment claims “based on the prosecutor and key
state witness making reference to his previous trials despite a ruling prohibiting
them from doing so.” Appellant’s Br. at 36. Exhaustion of state remedies is a
prerequisite for habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (“An application for
a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears that . . . (A) the applicant has
exhausted the remedies available in the courts of the State . . . .”). In the
proceedings before the Washington Supreme Court, Blackmon asserted that the
victim’s reference to prior “trial” testimony and the prosecutor’s similar references
unfairly violated his Sixth Amendment right of confrontation and invited the jury
to conclude that he had been “convicted of another crime against the victim in the
previous trial proceedings.” SER 15. There was no contention that these
2
On the last day of trial testimony, the court inquired of the parties (with
Blackmon present) whether they would get to closings that day. Blackmon’s
counsel responded, “It’s possible if Mr. Blackmon chooses not to testify.” ER 31.
After presenting some additional evidence, the government rested. Blackmon’s
counsel then informed the court that the defense was also resting. Blackmon raised
no objection then or before the jury returned their verdict.
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references to a prior “trial” violated his Fifth Amendment right against self-
incrimination.
AFFIRMED.
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