NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA DAVID GIDDINGS, No. 21-35953
Petitioner-Appellant, D.C. No. 6:16-cv-00026-DLC
v.
MEMORANDUM*
AUSTIN KNUDSEN; JIM SALMONSEN,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted May 11, 2023**
Seattle, Washington
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Joshua David Giddings brings a habeas petition challenging his 2007
Montana state conviction for the deliberate homicide that took the life of Amy
Rolfe, tampering with or fabricating physical evidence, and criminal possession of
a dangerous drug (methamphetamine). Giddings raises three certified issues on
*
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).
appeal. First, that his due process right to be present during three pretrial hearings
was violated. Second, that the district court erred in rejecting Giddings’s Brady
claim. And third, that the district court erred in concluding that Giddings’s claim
concerning the state court’s interpretation of Rule 404(b) of the Montana Rules of
Evidence is not a cognizable claim under federal habeas review. Giddings also
raises two uncertified issues on appeal. As the parties are familiar with the facts of
this case, we do not repeat them here. Because Giddings’s claims are either
procedurally defaulted, unexhausted, waived, barred under 28 U.S.C. § 2253, or
the district court did not err in its analysis, we affirm.
We review a denial of a petition for writ of habeas corpus de novo. Earp v.
Davis, 881 F.3d 1135, 1142 (9th Cir. 2018). “Factual findings and credibility
determinations made by the district court in the context of granting or denying [a
petition for writ of habeas corpus] are reviewed for clear error.” Id. (alteration in
original) (citing Larsen v. Soto, 742 F.3d 1083, 1091–92 (9th Cir. 2013)).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
we may not grant habeas relief unless the state court’s adjudication of the merits of
a federal claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law” or “resulted in a
decision that was based on an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d).
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1. Giddings first argues that his right to be present during a critical stage of
his trial was violated when three pretrial hearings were held in his absence. “[A]
state prisoner must exhaust available state remedies before presenting his claim to
a federal habeas court.” Davila v. Davis, 582 U.S. 521, 527 (2017) (citing 28
U.S.C. § 2254(b)(1)(A)). Additionally, “a federal court may not review federal
claims that were procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural rule.” Id.
Additionally, “failure to object to a magistrate judge’s factual findings waives the
right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th
Cir. 2015) (citation omitted).
Here, Giddings (1) procedurally defaulted and failed to exhaust by not
raising the due process claims in his state post-conviction petition, and (2) waived
a challenge to preserve on this appeal his due process violation claims by failing to
object to the magistrate judge’s report and recommendation on these claims.
Therefore, he has waived any right to challenge the factual findings the federal
district court made about his presence at those three hearings—namely that he
failed to establish he was not present at the November and December 2006
hearings.
2. Next, Giddings argues that Detective Mark Ekola destroyed exculpatory
evidence in violation of Brady v. Maryland when he either shredded or threw away
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his handwritten interview notes after memorializing them in his typed police
reports and failed to record the entirety of three of his four interviews with witness
Richard Alan King.
“There is no dispute that Brady constitutes clearly established federal law for
purposes of AEDPA.” Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015).
To demonstrate that the state court erred, Giddings had to “show either that ‘the
state court applie[d] a rule that contradicts the governing law set forth in [Brady]’ .
. . or that the state court’s application of Brady was ‘objectively unreasonable.’”
Id. (first citing Williams v. Taylor, 529 U.S. 362, 405 (2000); and then citing White
v. Woodall, 572 U.S. 415, 419 (2014)).
Giddings provides nothing more than his personal beliefs and conclusory
statements that the notes or the unrecorded interviews may have been exculpatory.
The magistrate judge and the district court properly concluded that “the Montana
Supreme Court’s adjudication of this issue did not constitute an unreasonable
application of Brady . . . or otherwise present an unreasonable determination of
facts.”
3. Finally, Giddings argues that the Montana state court violated his right to
present a defense by limiting his cross-examination of King at trial by excluding
certain evidence under Rule 404(b) of the Montana Rules of Evidence.
Federal habeas relief “does not lie for errors of state law.” Estelle v.
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McGuire, 502 U.S. 62, 67 (1991) (internal citation omitted). “It is well settled that
a state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas
relief only if it renders the state proceedings so fundamentally unfair as to violate
due process.” Demetrulias v. Davis, 14 F.4th 898, 907 (9th Cir. 2021).
The magistrate judge and the district court both properly rejected this claim
because federal habeas relief cannot stem from an alleged error in interpreting state
law. Giddings presented no evidence that the proceedings below were so
fundamentally unfair as to constitute a federal due process violation. The evidence
the trial court kept out was propensity evidence that is not allowed under Mont. R.
Evid. 404(b). The state trial court did allow Giddings to introduce evidence of
King’s prior conviction for deceptive practices, drug use, and bad feelings towards
Amy’s boyfriend Mike Mix. Moreover, Giddings fails to show that the state
court’s denial of this claim “was contrary to, or involved an unreasonable
application of, clearly established Federal law” or “was based on an unreasonable
determination of the facts,” as required by 28 U.S.C. § 2254(d).
4. Finally, Giddings is barred from raising his two uncertified questions on
appeal. The text of 28 U.S.C. § 2253 unequivocally states that “unless a circuit
justice or judge issues a certificate of appealability, an appeal may not be taken in
the court of appeals.” We deny the request to expand the certificate of
appealability regarding the uncertified issues because a reasonable jurist would not
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“find the district court’s assessment of the constitutional claims debatable or
wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation omitted); see
also Ninth Cir. Ct. R. 22-1(e); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.
2005).
AFFIRMED.
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