NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS CORONA, No. 19-56458
Petitioner-Appellant, D.C. No.
5:17-cv-00413-AG-SHK
v.
NEIL MCDOWELL, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted July 7, 2021**
Pasadena, California
Before: D.M. FISHER,*** WATFORD, and BUMATAY, Circuit Judges.
Jesus Corona appeals the district court’s denial of his petition for a writ of
habeas corpus. We have jurisdiction under 28 U.S.C. § 1291 and § 2253. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
1. We are precluded from reviewing Corona’s vindictive prosecution claim.
We generally will not “review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is independent of the federal
question and adequate to support the judgement.” Coleman v. Thompson, 501 U.S.
722, 729 (1991). Here, the last reasoned state court decision denied Corona’s habeas
petition because it raised “issues that could have been raised on appeal, but were
not.” Under California’s “Dixon bar,” a petition for a writ of habeas corpus is
procedurally barred when “the claimed errors could have been, but were not, raised
upon a timely appeal from a judgment of conviction.” Ex parte Dixon, 41 Cal. 2d
756, 759 (1953). We have previously recognized this rule as an independent and
adequate state ground. See Johnson v. Montgomery, 899 F.3d 1052, 1060 (9th Cir.
2018). Thus, because California has shown the existence of an independent and
adequate state procedural ground, and because Corona has not asserted “specific
factual allegations that demonstrate the inadequacy of the state procedure,” we may
not review his claim. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).
Neither can Corona establish cause and prejudice to excuse the default under
Coleman, 501 U.S. at 746–51, because his underlying vindictive prosecution claim
is without merit. A prosecutor’s decision to modify charges after a defendant
exercises a pretrial procedural right does not create a presumption of prosecutorial
vindictiveness. See United States v. Goodwin, 457 U.S. 368, 381 (1982) (explaining
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that “a defendant before trial is expected to invoke procedural rights that inevitably
impose some ‘burden’ on the prosecutor,” and that, therefore, “[i]t is unrealistic to
assume that a prosecutor’s probable response to such [invocations] is to seek to
penalize and to deter”). Corona likewise has not shown “either direct evidence of
actual vindictiveness or facts that warrant an appearance of such” to establish a prima
facie case of prosecutorial vindictiveness. Nunes v. Ramirez-Palmer, 485 F.3d 432,
441 (9th Cir. 2007) (simplified). Accordingly, Corona cannot show any prejudice
from the application of California’s procedural bar.
2. Corona raises three uncertified issues in his opening brief. We will only
expand a certificate of appealability where “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because
Corona has not made such a showing, we decline to expand the certificate.
First, Corona’s argument under Napue v. People of State of Ill., 360 U.S. 264,
269 (1959), fails because Corona has not explained (1) how the testimony was false,
(2) how the prosecution knew of said falsity, or (3) how the alleged false testimony
was material, Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008). Next,
Corona’s argument that the trial court violated his Sixth Amendment right by
revoking his pro se status fails because “the trial judge may terminate self-
representation by a defendant who deliberately engages in serious and obstructionist
misconduct.” Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Finally,
3
Corona’s ineffective assistance of counsel claim fails because Corona himself
caused the lack of communication. See United States v. Plascencia-Orozco, 852
F.3d 910, 917–18 (9th Cir. 2017).
AFFIRMED.
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