Charles Piper v. D. Uribe, Jr., Warden

Ninth Circuit

Charles Piper v. D. Uribe, Jr., Warden

584 F. App'x 722

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 2, 2014

Docket10-56677

StatusUnpublished

This text of 584 F. App'x 722 (Charles Piper v. D. Uribe, Jr., Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Charles Piper v. D. Uribe, Jr., Warden, 584 F. App'x 722 (9th Cir. 2014).

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Opinion

MEMORANDUM ***

Charles Piper appeals the district court’s denial of his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254.

I

Piper contends that the state courts’ rejection of his federal due process claim— premised on the trial court’s allowance of an amendment to add a count that had been dismissed at a preliminary hearing— was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). An independent review of the record reveals a reasonable justification for the state courts’ decision. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). The preliminary hearing transcript, reviewed by the trial judge, suggests that the dismissed count was “shown by the evidence taken at the preliminary examination,” Cal.Penal Code § 1009; see also People v. Graff, 170 Cal.App.4th 345, 87 Cal.Rptr.3d 827, 838 (2009). Thus, even if we assume that § 1009 establishes a liberty interest protected by the Fourteenth Amendment, the state courts might reasonably have concluded that Piper was not deprived of such right in an “arbitrary” manner. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).

II

Piper maintains that the state courts’ rejection of his ineffective assistance of counsel claim — premised on his counsel’s failure on appeal to challenge the amendment — was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But because the state courts might reason *723 ably have concluded that the amendment did not violate state law, they might reasonably have decided also that the failure to challenge the amendment on appeal was not constitutionally ineffective. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.2001).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM ***

Charles Piper appeals the district court’s denial of his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254.

I

Piper contends that the state courts’ rejection of his federal due process claim— premised on the trial court’s allowance of an amendment to add a count that had been dismissed at a preliminary hearing— was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). An independent review of the record reveals a reasonable justification for the state courts’ decision. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). The preliminary hearing transcript, reviewed by the trial judge, suggests that the dismissed count was “shown by the evidence taken at the preliminary examination,” Cal.Penal Code § 1009; see also People v. Graff, 170 Cal.App.4th 345, 87 Cal.Rptr.3d 827, 838 (2009). Thus, even if we assume that § 1009 establishes a liberty interest protected by the Fourteenth Amendment, the state courts might reasonably have concluded that Piper was not deprived of such right in an “arbitrary” manner. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).

II

Piper maintains that the state courts’ rejection of his ineffective assistance of counsel claim — premised on his counsel’s failure on appeal to challenge the amendment — was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But because the state courts might reason *723 ably have concluded that the amendment did not violate state law, they might reasonably have decided also that the failure to challenge the amendment on appeal was not constitutionally ineffective. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.2001).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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584 F. App'x 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-piper-v-d-uribe-jr-warden-ca9-2014.

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