NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY PENTON, No. 19-56201
Petitioner-Appellant, D.C. No. 3:06-cv-00233-WQH-RBM v.
A. MALFI, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Submitted November 18, 2020** Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
Petitioner Anthony Penton appeals the district court’s denial of his habeas
petition under 28 U.S.C. § 2254, raising seven claims. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we review the district court’s decision de novo.
* 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). Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). We affirm.1
First, the state trial court did not err in imposing the upper term sentence based
on its finding that Petitioner’s “prior convictions are numerous and of increasing
seriousness.” Petitioner argues that the “narrow” prior conviction exception
discussed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Cunningham v.
California, 549 U.S. 270, 275, 288–89 (2007) (“Apprendi claim”) does not apply to
the state trial judge’s determination. But the Supreme Court did not specify the prior
conviction exception’s precise contours, which we have subsequently recognized as
a lack of clearly established law on its scope. See Kessee v. Mendoza-Powers, 574
F.3d 675, 676–77, 679 (9th Cir. 2009). And other courts have interpreted the prior
conviction exception in such a way that comports with the state trial court’s
determination here. See, e.g., People v. Towne, 186 P.3d 10, 16 (Cal. 2008).2 The
state court’s rejection of Petitioner’s Apprendi claim was not contrary to or an
unreasonable application of clearly established Supreme Court precedent. See 28
1 Because the parties are familiar with the facts, we recite them here only as necessary. 2 The Supreme Court in Cunningham reiterated that the fact of a prior conviction remains an exception to Apprendi; it did not delineate the exception’s scope. See Cunningham, 549 U.S. at 274–75, 288–89 (2007). Cunningham therefore does not squarely address or clearly extend to Petitioner’s Apprendi claim. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
2 U.S.C. § 2254(d)(1).3
Second, the state court’s rejection of Petitioner’s claim that the prosecutor
suppressed allegedly exculpatory police reports was not objectively unreasonable.
See 28 U.S.C. § 2254(d); Brady v. Maryland, 373 U.S. 83, 87 (1963). While
Petitioner argues that the prosecutor’s untimely production of the reports materially
impacted his defense, the state court reasonably determined that Petitioner already
knew the information contained within the reports and could have presented it had
he elected to take the stand. See Milke v. Ryan, 711 F.3d 998, 1017 (9th Cir. 2013).
Petitioner already knew when he had reported his rental car as stolen and he already
knew Thess Good, a friend of his discussed in one of the reports. Additionally, the
jury heard multiple witnesses identify Petitioner as the culprit, and that Petitioner
was linked to phone numbers that had made numerous calls in the same area as the
crime, during the same time as the crime (and victims had observed that one of the
perpetrators used a cell phone during the commission of the crime). The jury also
learned that a search of Petitioner’s home revealed an identification card with
Petitioner’s picture alongside the last name of the subscriber of one of the phone
numbers that had made those many suspicious calls. Considering the substantial
3 Petitioner’s argument that the state trial judge unreasonably determined the facts pertaining to Petitioner’s sentencing fail because they are based on alleged errors of state law, which does not warrant habeas relief. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
3 incriminating evidence presented at trial, and the fact that Petitioner chose not to
pursue the information contained within the reports that he already knew, earlier
disclosure of the reports would not have reasonably resulted in a different outcome.
See Turner v. United States, 137 S. Ct. 1885, 1893 (2017).4
Third, the state court’s exclusion of evidence pertaining to a stolen rental car
was not contrary to or an unreasonable application of any clearly established
Supreme Court precedent. See Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per
curiam); United States v. Scheffer, 523 U.S. 303, 308 (1998). The state trial court
only excluded statements that qualified as hearsay, and allowed Petitioner to testify
on the topic if he so chose. And as discussed, limiting the admissibility of those
statements to Petitioner’s testimony does not contradict or unreasonably apply
Mitchell. See supra n.4.5 But even if the state trial court unconstitutionally excluded
4 By limiting the admissibility of certain evidence to Petitioner’s testimony, the state trial court did not contradict or misapply Mitchell v. United States, 526 U.S. 314, 327–28 (1999). Mitchell does not squarely address or clearly extend to the application of well-established evidence exclusion rules and the need for a defendant’s testimony to introduce otherwise-excluded evidence. See id. at 316–17, 27–28; Moses, 555 F.3d at 754. Moreover, we have previously upheld a trial judge’s evidentiary ruling even when it meant that the admission of certain evidence required the requisite foundation, which could only occur through the defendant’s testimony. See Menendez v. Terhune, 422 F.3d 1012, 1030–31 (9th Cir. 2005). 5 While Petitioner argues that the state trial court unreasonably excluded the evidence under the factors discussed in Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985), the Miller factors do not constitute clearly established Supreme Court precedent for the purposes of habeas relief under AEDPA. See Moses, 555 F.3d at 759.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY PENTON, No. 19-56201
Petitioner-Appellant, D.C. No. 3:06-cv-00233-WQH-RBM v.
A. MALFI, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Submitted November 18, 2020** Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
Petitioner Anthony Penton appeals the district court’s denial of his habeas
petition under 28 U.S.C. § 2254, raising seven claims. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we review the district court’s decision de novo.
* 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). Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). We affirm.1
First, the state trial court did not err in imposing the upper term sentence based
on its finding that Petitioner’s “prior convictions are numerous and of increasing
seriousness.” Petitioner argues that the “narrow” prior conviction exception
discussed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Cunningham v.
California, 549 U.S. 270, 275, 288–89 (2007) (“Apprendi claim”) does not apply to
the state trial judge’s determination. But the Supreme Court did not specify the prior
conviction exception’s precise contours, which we have subsequently recognized as
a lack of clearly established law on its scope. See Kessee v. Mendoza-Powers, 574
F.3d 675, 676–77, 679 (9th Cir. 2009). And other courts have interpreted the prior
conviction exception in such a way that comports with the state trial court’s
determination here. See, e.g., People v. Towne, 186 P.3d 10, 16 (Cal. 2008).2 The
state court’s rejection of Petitioner’s Apprendi claim was not contrary to or an
unreasonable application of clearly established Supreme Court precedent. See 28
1 Because the parties are familiar with the facts, we recite them here only as necessary. 2 The Supreme Court in Cunningham reiterated that the fact of a prior conviction remains an exception to Apprendi; it did not delineate the exception’s scope. See Cunningham, 549 U.S. at 274–75, 288–89 (2007). Cunningham therefore does not squarely address or clearly extend to Petitioner’s Apprendi claim. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
2 U.S.C. § 2254(d)(1).3
Second, the state court’s rejection of Petitioner’s claim that the prosecutor
suppressed allegedly exculpatory police reports was not objectively unreasonable.
See 28 U.S.C. § 2254(d); Brady v. Maryland, 373 U.S. 83, 87 (1963). While
Petitioner argues that the prosecutor’s untimely production of the reports materially
impacted his defense, the state court reasonably determined that Petitioner already
knew the information contained within the reports and could have presented it had
he elected to take the stand. See Milke v. Ryan, 711 F.3d 998, 1017 (9th Cir. 2013).
Petitioner already knew when he had reported his rental car as stolen and he already
knew Thess Good, a friend of his discussed in one of the reports. Additionally, the
jury heard multiple witnesses identify Petitioner as the culprit, and that Petitioner
was linked to phone numbers that had made numerous calls in the same area as the
crime, during the same time as the crime (and victims had observed that one of the
perpetrators used a cell phone during the commission of the crime). The jury also
learned that a search of Petitioner’s home revealed an identification card with
Petitioner’s picture alongside the last name of the subscriber of one of the phone
numbers that had made those many suspicious calls. Considering the substantial
3 Petitioner’s argument that the state trial judge unreasonably determined the facts pertaining to Petitioner’s sentencing fail because they are based on alleged errors of state law, which does not warrant habeas relief. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
3 incriminating evidence presented at trial, and the fact that Petitioner chose not to
pursue the information contained within the reports that he already knew, earlier
disclosure of the reports would not have reasonably resulted in a different outcome.
See Turner v. United States, 137 S. Ct. 1885, 1893 (2017).4
Third, the state court’s exclusion of evidence pertaining to a stolen rental car
was not contrary to or an unreasonable application of any clearly established
Supreme Court precedent. See Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per
curiam); United States v. Scheffer, 523 U.S. 303, 308 (1998). The state trial court
only excluded statements that qualified as hearsay, and allowed Petitioner to testify
on the topic if he so chose. And as discussed, limiting the admissibility of those
statements to Petitioner’s testimony does not contradict or unreasonably apply
Mitchell. See supra n.4.5 But even if the state trial court unconstitutionally excluded
4 By limiting the admissibility of certain evidence to Petitioner’s testimony, the state trial court did not contradict or misapply Mitchell v. United States, 526 U.S. 314, 327–28 (1999). Mitchell does not squarely address or clearly extend to the application of well-established evidence exclusion rules and the need for a defendant’s testimony to introduce otherwise-excluded evidence. See id. at 316–17, 27–28; Moses, 555 F.3d at 754. Moreover, we have previously upheld a trial judge’s evidentiary ruling even when it meant that the admission of certain evidence required the requisite foundation, which could only occur through the defendant’s testimony. See Menendez v. Terhune, 422 F.3d 1012, 1030–31 (9th Cir. 2005). 5 While Petitioner argues that the state trial court unreasonably excluded the evidence under the factors discussed in Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985), the Miller factors do not constitute clearly established Supreme Court precedent for the purposes of habeas relief under AEDPA. See Moses, 555 F.3d at 759.
4 hearsay evidence, the exclusion did not have substantial and injurious effect or
influence in determining the jury’s verdict—especially given that, for the reasons
discussed above, “the State’s evidence of guilt was, if not overwhelming, certainly
weighty.” Brecht v. Abrahamson, 507 U.S. 619, 639 (1993); see also Kyles v.
Whitley, 514 U.S. 419, 435 (1995).6 Indeed, Petitioner’s argument that the excluded
evidence was “highly probative of the lack of a relationship between [Petitioner] and
[his codefendant],” is belied by Petitioner’s own statement to the police that he drove
his “friend” and co-defendant who he had known “for … a few weeks” to the store
and left the co-defendant in his rental car with the keys in the ignition.
Fourth, the state court reasonably rejected Petitioner’s argument that
testimony in a post-trial hearing, in the absence of Petitioner’s presence, did not
violate Petitioner’s rights under the Confrontation Clause. There is no clearly
established Supreme Court precedent extending the Confrontation Clause to post-
trial hearings; indeed, the Supreme Court has repeatedly referred to the
Confrontation Clause right as a trial right. See, e.g., Pennsylvania v. Ritchie, 480
U.S. 39, 52–53 (1987); California v. Green, 399 U.S. 149, 157 (1970). While
6 Neither did the state trial court’s evidentiary ruling constitute an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). The state trial court reasoned that “[t]he timing [of the reporting] is unique only in that it puts in issue the credibility of [Petitioner] who obviously would be subject to cross-examination if he took the stand.” The timing of Petitioner’s reporting did not affect the admissibility of the excluded evidence.
5 Petitioner argues that the Confrontation Clause should apply in post-trial
determinations of guilt, habeas review is not the appropriate place to extend Supreme
Court precedent. Neither was the state court’s rejection of this claim an
unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Even if
confrontation rights apply in hearings adjudicating motions for new trials, the state
court reasonably determined that the testimony at issue was only part of the reason
the trial court denied his motion, which is a reasonable determination especially
considering the weight of the evidence implicating Petitioner. As such, any alleged
error did not have a substantial or injurious effect on the outcome of the proceeding.
See Brecht, 507 U.S. at 637.
Fifth, the state court’s rejection of Petitioner’s attempt to collaterally attack a
prior conviction due to the lack of appellate counsel was not contrary to or an
unreasonable application of Lackawanna County District Attorney v. Coss, 532 U.S.
394, 404 (2001); 28 U.S.C. § 2254(d)(1). Lackawanna explicitly delimited its
exception to rights protected by the Sixth Amendment and Gideon v. Wainwright,
372 U.S. 335 (1963), and “[t]he Sixth Amendment does not include any right to
appeal.” Martinez v. Ct. of Appeal of Cal., Fourth App. Dist., 528 U.S. 152, 160
(2000). Because Lackawanna does not clearly extend to appellate counsel, the state
court reasonably rejected this claim. See Hooper v. Shinn, 985 F.3d 594, 614–15
(9th Cir. 2021).
6 Sixth, the state court did not unreasonably reject Petitioner’s ineffective
assistance of appellate counsel claim. Petitioner fails to establish how his appellate
counsel’s representation fell below an objective standard of reasonableness, or how
the results of the proceeding would have been different had his appellate counsel
raised claims that multiple courts have since rejected, or that any unraised claims
were plainly stronger than the claims raised. See Davila v. Davis, 137 S. Ct. 2058,
2067 (2017); Harrington v. Richter, 562 U.S. 86, 104 (2011), Cullen v. Pinholster,
563 U.S. 170, 189 (2011); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Petitioner merely reincorporates the same arguments made throughout his briefings
that we reject herein, and unpersuasively argues that the unraised claims were non-
frivolous. Cf. Davila, 137 S. Ct. at 2067 (“Effective appellate counsel should not
raise every nonfrivolous argument on appeal, but rather only those arguments most
likely to succeed.”).
Seventh, for the reasons stated herein, none of Petitioner’s alleged errors
combine for a cumulative effect that is so prejudicial as to require reversal. See
Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002).
Finally, we deny Petitioner’s pending motion to stay appellate proceedings as
moot in lieu of this disposition. Petitioner requests a stay and order that the district
court hold his petition in abeyance pending the resolution of his “forthcoming filing
of an actual innocence claim in state court,” but has not indicated that he has initiated
7 any such state court proceedings. A claim of actual innocence does not
independently warrant federal habeas relief, Herrera v. Collins, 506 U.S. 390, 400,
404 (1993), and Petitioner has not demonstrated how his proffered evidence
strengthens his existing claims to the point that his arguments become potentially
meritorious. Cf. Gonzalez v. Wong, 667 F.3d 965, 986 (9th Cir. 2011). Finally, the
denial of his stay motion in federal court will not prevent him from pursuing his
actual innocence claim in state court.7
The district court is AFFIRMED, and Petitioner’s motion to stay is DENIED.
7 Because we deny Petitioner’s motion as moot in lieu of this disposition, we likewise deny Petitioner’s alternate request to allow Petitioner an evidentiary hearing before the district court as moot as well.