FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRIAN KEATON GEORGE, No. 10-16873
Petitioner - Appellant, DC No. 4:09-cv 02076 CW
v.
MEMORANDUM *
JOHN W. HAVILAND, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted January 17, 2013
San Francisco, California
Before: TASHIMA and GRABER, Circuit Judges, and ADELMAN, District
Judge.**
Brian George, who was convicted in state court on several charges
associated with two separate shooting incidents, petitions for habeas corpus relief
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
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under 28 U.S.C. § 2254. His petition – which is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) – cannot be granted unless the
state’s adjudication was (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States”; or (2) “based on an unreasonable determination of the facts.” 28
U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 405-06 (2000). We affirm
the district court’s denial of the petition.
1. George argues that the trial court’s failure to instruct the jury with
CALJIC 2.21.2 violated his right to due process. That instruction allows jurors to
“reject the whole testimony of a witness who willfully has testified falsely as to a
material point.” This instruction was warranted because of the undisputed
inconsistencies in the testimony of a key state witness, Jeremy Phillips. The state
court reasonably concluded, however, that the error was harmless and thus did not
violate due process. The substance of CALJIC 2.21.2 was adequately covered by
other instructions, including CALCRIM 226, which provides, in part: “You may
believe all, part, or none of any witness’s testimony. . . . In evaluating a witness’s
testimony, you may consider anything that reasonably tends to prove or disprove
the truth or accuracy of that testimony.” Moreover, nothing in the instructions
precluded the jury from drawing the common-sense inference described by
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CALJIC 2.21.2. Accordingly, the state court’s ruling was reasonable under the
AEDPA.
2. George also contends that his due process rights were violated when
the state court consolidated charges related to two separate shooting incidents. As
an initial matter, this claim fails because, under the AEDPA, it is not “clearly
established” that misjoinder of charges can violate due process. See Collins v.
Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Even if there were applicable and
clearly established federal law, the state court reasonably concluded that there was
no due process violation. The two sets of charges were simple and distinct, and
neither was demonstrably stronger than the other. Moreover, the jury failed to
convict on one charge from each shooting incident, which shows its ability to
compartmentalize the two cases. Park v. California, 202 F.3d 1146, 1150 (9th Cir.
2000).
AFFIRMED.
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