Varghese v. Uribe

• Decision Date: 23 September 2013
• Docket Number: No. 11–55686.,11–55686.
• Citation: 736 F.3d 817
• Parties: Parrakkamannil Koshy Bilji VARGHESE, Petitioner–Appellant, v. Domingo URIBE, Jr., Warden; Edmund G. Brown, Jr., Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

736 F.3d 817

Parrakkamannil Koshy Bilji VARGHESE, Petitioner–Appellant,

v.Domingo URIBE, Jr., Warden; Edmund G. Brown, Jr., Respondents–Appellees.

No. 11–55686.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 8, 2013.

Filed June 26, 2013.

Amended Sept. 23, 2013.

Todd W. Burns (argued), Burns & Cohan, San Diego, CA, for Petitioner–Appellant.

Lynne G. McGinnis (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Julie L. Garland, Senior Assistant Attorney General; Kevin Vienna and Gil Gonzalez, Supervising Deputy Attorneys General, Office of

the Attorney General, San Diego, CA, for Respondents–Appellees.

Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. 3:09–cv–02801–WQH–WVG.

Before: ALEX KOZINSKI, Chief Judge, M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed on June 26, 2013, and appearing at 720 F.3d 1100 (9th Cir.2013), is amended as follows:

1. Slip op. at 10, 720 F.3d at 1106, replace state court has no specific legal rule to apply, the state court's decision “is not an unreasonable application of clearly established Federal law.”> with ”[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established” by the Supreme Court.>.

2. Slip op. at 11, 720 F.3d at 1107, following ”Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Id. at 686.> add ”[E]ven a general standard may be applied in an unreasonable manner,” Panetti v. Quarterman, 551 U.S. 930, 953 [127 S.Ct. 2842, 168 L.Ed.2d 662] (2007), but the California Court of Appeal did not unreasonably apply Strickland and its progeny in affirming the trial court's refusal to allow confidential defense testing of the blood sample.>.

3. Slip op. at 11, 720 F.3d at 1107, delete .

4. Slip op. at 11 n.2, 720 F.3d at 1107 n. 2, replace with McCormick is “relevant persuasive authority,” Himes, 336 F.3d at 853, but it adds little to Varghese's argument that the state court's decision was objectively unreasonable.>.

5. Slip op. at 19, 720 F.3d at 1111, delete Simmons is inapposite because>.

An amended opinion will be filed concurrently with this order.

With the amended opinion, the panel has unanimously voted to deny the petitions for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for panel rehearing and rehearing en banc are DENIED.

No further petitions shall be entertained.

OPINION

M. SMITH, Circuit Judge:

Parakkamannil Koshy Bilji Varghese, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted Varghese of stabbing and murdering his ex-wife's lover. A key piece of evidence in the case was a small blood stain found at the crime scene. The prosecution's initial test of the blood stain showed that it matched Varghese's DNA. Varghese requested the remaining blood sample to conduct a DNA test using his own expert, but without having to disclose the test results to the prosecution, even though a second test would likely consume the remaining blood. The trial court denied Varghese's request and instead offered Varghese the choice of having either an independent laboratory or his own expert test the blood, but only if the test results were made available to both parties. Varghese's counsel refused the trial court's proposal. Varghese appealed, arguing, among other things, that the trial court's ruling violated his right to counsel. In a reasoned decision, the California Court of Appeal affirmed the trial court.

On federal habeas review, Varghese claims that the trial court's ruling regarding the blood sample violated his constitutional rights to counsel and due process. Because, at the time the California Court of Appeal rendered its decision, there was no Supreme Court decision that squarely addressed Varghese's claims, or announced a principle that clearly extended to the circumstances of this case, we hold that the state court's decision was not “contrary to” or an “unreasonable application” of “clearly established Federal law” under 28 U.S.C. § 2254(d)(1). Accordingly, we affirm.

FACTS AND PRIOR PROCEEDING

A. Factual Background¹

In April 2003, Varghese and his wife, Vilia Varghese, separated. Varghese was unhappy with the separation and did not want a divorce. During this period, Vilia began a relationship with Haval Ravin, a physician who ran a fertility clinic.

On November 12, 2004, Ravin was found dead at his home, with multiple stab wounds to his body, including to his neck, abdomen, back, bicep, and testicles. Police officers found several inculpatory pieces of evidence at the crime scene, including a shoe that belonged to Varghese and a matching bloody shoeprint. A critical piece of evidence for the prosecution was a blood spot (Item 19) found near a light switch at Ravin's home. The prosecution's initial DNA test and analysis of the blood spot, conducted by criminalist David Cornacchia of the San Diego Police Department, Forensic Science Section, indicated that Varghese was almost certainly the source of the DNA profile. The probability of selecting an individual, at random, who matched the DNA profile from this blood sample was in the quintillions.

By pretrial motion, Varghese requested an order permitting his expert, Dr. Edward Blake, to test the blood sample, but with no obligation to reveal the test results to the prosecution. Varghese conceded that a second test might consume the remaining blood. The prosecution opposed the motion, stating that it wished to conduct further testing to corroborate its initial results, and would be unable to do so if Varghese's motion were granted. The prosecution suggested that either a neutral laboratory agreeable to both parties or Varghese's expert test the remaining blood, but only if both parties could access and introduce at trial the data and results of that test. The trial court found that there was a high risk that additional testing would consume the remaining blood, and concluded that the prosecution was entitled to corroborate its findings with regard to such an important piece of evidence. Under the circumstances, the trial court determined that the prosecution's proposed compromise was reasonable, and denied Varghese's motion for the release of Item 19 for confidential testing. Varghese filed a motion for reconsideration, which the trial court denied. During the second motion hearing, the trial court reiterated that it would be willing to permit a neutral laboratory or the defense expert to test the blood, but only if the results were made available to both parties. The defense declined the court's offer.

In April 2006, Varghese was convicted by a jury of first-degree murder, and use of a deadly weapon, a knife, in the commission of the murder, in violation of California Penal Code §§ 187(a) and 12022(b)(1). He was sentenced to a prison term of 26 years to life. Varghese appealed the conviction, arguing, inter alia, that the trial court erred in conditioning the use of his own expert on his disclosure of the test results to the prosecution, in violation of his right to counsel under Prince v. Superior Court, 8 Cal.App.4th 1176, 10 Cal.Rptr.2d 855 (1992). In a reasoned decision, issued on May 8, 2008, the California Court of Appeal affirmed the trial court. See Varghese, 76 Cal.Rptr.3d at 454–58. The California Supreme Court summarily denied the petition for review. The U.S. Supreme Court subsequently denied Varghese's petition for a writ of certiorari. See Varghese v. California, 555 U.S. 1143, 129 S.Ct. 1012, 173 L.Ed.2d 304 (2009).

B. Habeas Procedural History

On December 10, 2009, Varghese filed a petition for a writ of habeas corpus in federal district court. Varghese asserted that his Sixth Amendment right to counsel and Fourteenth Amendment right to due process were violated when the trial court conditioned the defense's testing of Item 19 on its disclosure of the results of that test to the prosecution. A magistrate judge recommended that Varghese's petition be denied under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The magistrate judge concluded that, at the time Varghese's claim was decided by the state appellate court, there was no U.S. Supreme Court authority that decided the precise issue of “whether due process and the right to counsel are violated when a court orders that a criminal defendant be granted access to test a sample of prosecution evidence that will destroy the evidence and then require[s] the result of the test to be disclosed to the prosecution.” As such, the state court “cannot be said to have unreasonably applied the law as to the issue presented in the Petition.” The magistrate judge further rejected Varghese's argument that the principles announced in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), clearly extended to the issues raised in the petition.

The district court substantially adopted the recommendation of the magistrate judge and denied the petition. Nevertheless, the district court concluded that Varghese raised “nonfrivolous constitutional arguments” and granted a certificate of appealability. See28 U.S.C. § 2253(c); Fed. R.App. P. 22(b).

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). A district court's denial of a petition for a writ of habeas...