NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMARIO PICKFORD, No. 14-16627
Petitioner-Appellant, D.C. No. 4:13-cv-02686-PJH
v.
MEMORANDUM*
GERALD JANDA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted February 10, 2016
San Francisco, California
Before: HAWKINS and MURGUIA, Circuit Judges, and MURPHY,** District
Judge.
DiMario Pickford appeals the denial of his petition for habeas corpus, in
which he challenges his convictions for first-degree murder and possession of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
assault weapon. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
1. The California Supreme Court’s denial of Pickford’s claim regarding
Tameca Jessie’s criminal history was neither contrary to nor an unreasonable
application of Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the
prosecution to disclose material evidence that is favorable to the defense. Id. at 87.
Evidence is not material if it is not admissible, including for impeachment
purposes. See Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam). Also,
impeachment evidence is not material if it is “merely cumulative” with other forms
of impeachment evidence. United States v. Kohring, 637 F.3d 895, 908 (9th Cir.
2010). Here, the state court could have reasonably concluded that Tameca Jessie’s
convictions for driving under the influence and child desertion, along with her
then-pending charge for property damage and evidence that some of her
convictions may have listed the wrong birth date, were not material under Brady,
because the evidence was likely inadmissible in California because it did not relate
to crimes involving moral turpitude. See People v. Castro, 38 Cal. 3d 301, 306
(1985) (stating the California rule). Moreover, Jessie was impeached at trial by her
prior inconsistent statements, her conviction for embezzlement, the fact that she
was being paid as a witness, and her alcohol consumption. The state court could
reasonably conclude that the evidence of her criminal history was merely
cumulative with this other impeachment evidence. See Kohring, 637 F.3d at 908.
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2. The California Supreme Court’s denial of Pickford’s claim regarding the
transcript of Tameca Jessie’s police interview was likewise neither contrary to nor
an unreasonable application of Brady. Evidence is not “suppressed” under Brady
where the defendant is “aware of the essential facts enabling him to take advantage
of any exculpatory evidence.” United States v. Shaffer, 789 F.2d 682, 690 (9th Cir.
1986) (citation omitted). Here, Pickford had both the recording and the original
transcript of the interview, so the California Supreme Court could reasonably
conclude that he was aware of the essential facts from which he could take
advantage of the evidence. See Rhoades v. Henry, 638 F.3d 1027, 1039 (9th Cir.
2011) (holding that evidence was not suppressed where the defendant had all the
“salient facts” regarding its existence). The California Supreme Court could also
have found any additional impeachment evidence from the enhanced transcript to
be cumulative. See Kohring, 637 F.3d at 908.
3. We certified for appeal Pickford’s claim that trial counsel rendered
ineffective assistance by failing to investigate witnesses. Upon review of the
supplemental briefing and record, the California Supreme Court’s denial of this
claim was neither contrary to nor an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984). Pickford failed to exhaust his claim regarding
Tiffany Hines and Marcus Churchwell, because he never presented the state court
with an argument that trial counsel was ineffective for failing to investigate or call
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these witnesses. See Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005)
(“The Arizona appeals court was not required to comb the trial court’s decision to
discover Castillo’s federal constitutional issue.”). And Pickford failed to introduce
sufficient evidence of trial counsel’s performance to show that the performance
was objectively unreasonable. See Burt v. Titlow, 134 S. Ct. 10, 17–18 (2013);
Bragg v. Galaza, 242 F.3d 1082, 1088–90 (9th Cir.) (“[T]he record developed by
Bragg in state court does not give adequate factual support for us to credit his
claims of ineffective assistance of counsel.”), amended by 253 F.3d 1150 (2001).
4. We also certified for appeal Pickford’s claim that he is actually innocent.
The California Supreme Court’s denial of this claim was neither contrary to nor an
unreasonable application of federal law. Pickford’s new evidence does not meet
the “extraordinarily high” standard of showing “that he is probably innocent.”
Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (internal quotation marks and
citations omitted). And because the California Supreme Court’s denial of this
claim was not unreasonable based on the evidence presented to it, we cannot order
an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011)
(holding that “review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits”).
AFFIRMED.
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