Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge SHEA.
OPINION
RAWLINSON, Circuit Judge:
Edmund Chein (“Chein”) appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254, chal[750]*750lenging his conviction following a jury trial on three counts of perjury.
Chein asserts that he was deprived of his due process rights under law when: (1) the judge who presided over one of the underlying civil trials testified in Chein’s perjury trial; and (2) the prosecutor repeatedly referred to the facts of the underlying case in violation of an express ruling by the court. Chein also contends that there was insufficient evidence to support the perjury convictions. Because Chein’s due process claims were proeedurally defaulted and there was sufficient evidence to support a finding of perjury as to one of the statements, we AFFIRM the district court’s dismissal of Chein’s habeas petition.
I. Background
Chein faced perjury charges as a result of his testimony in a personal injury trial and his response to an interrogatory in a different civil ease.
Count 1 of the Information charged Chein with testifying falsely that “he was a specialist in orthopedic surgery.”
Chein’s specific testimony was this:
Q: Then when the residency ends, am I correct, in layman’s terms, you’re a regular doctor; right?
A: No. You are a specialist.
Q: You were a specialist following that—
A: Training period.
Q: —Training period? And your specialty, what would be the correct designation?
A: Physical medicine and orthopedic surgery.
A: If a doctor wants to specialize in a field, then they have to spend another four to five years, depending on a specialty, in a program called residency in a medical school affiliated hospital. And upon finishing that residency or specialty training program then he goes out and practices as a specialist.
Q: And did you receive your specialty qualifications?
A: Yes.
Q: What field is that specialty, Sir?
A: I’m board certified in December 1988 in — by the American Board of Orthopedic and Neurological Surgery.
Count 2 charged that Chein committed perjury when he testified that “he had one office location on October 9, 1989 and October 30, 1990 to November 2, 1990.” Chein testified particularly as follows:
Q: Doctor, how many office locations do you have now?
A: One.
Q: How many did you have on October the 9th, 1989?
A: One.
These two counts stemmed from a personal injury trial where Chein testified as a treating physician.
Count 4 of the Information charged that Chein committed perjury when he testified “that he attended and received a medical degree from American University School of Medicine in Florida.”
Chein provided the following response to an interrogatory:
“State:
a) the name and address of each school or other academic or vocational institution you have attended beginning with high school;
b) the date you attended;
c) the highest grade level you have completed;
d) the degree received.”
[751]*751Chein’s response was “American University School of Medicine, Florida, 1979-1980 M.D.”
The judge who presided over the personal injury civil trial testified during Cheiris perjury trial. Although Chein filed a motion in limine prior to trial seeking exclusion of the judge as a witness, Chein failed to object to the judge’s testimony at trial on the same basis (violation of due process) that he now asserts on appeal.
Chein also objected to the prosecutor’s delving into the facts of the underlying personal injury case. Despite the court’s sustaining of Cheiris objection, the prosecutor made several references to the facts of the underlying case. Chein objected to the references on relevancy grounds.
Chein appealed to the California Court of Appeal, which affirmed his conviction. The California Supreme Court denied Cheiris petition for review. Chein then filed the federal habeas petition that is the subject of this appeal.
II. Standard of Review
Our review of the district court’s decision to deny habeas relief is de novo. Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir.2002). The district court’s factual findings are reviewed for clear error. Id. Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, we will “grant habeas relief to a person in state custody only if the decision was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, or the claimed constitutional error resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id. (citations omitted).1
III. Discussion
A. Procedural Default
1. Testimony of the civil trial judge
Prior to the perjury trial, Chein filed a motion in limine objecting to the judge’s appearance as a witness. Chein challenged admission of the judge’s testimony on the bases of relevance and prejudice. Chein profferred no due process objection. In his motion for a new trial, Chein noted that admission of the trial judge’s testimony resulted in an “unfair trial.” However, Chein again failed to explicitly interpose a due process objection.
The California Court of Appeal ruled that Cheiris constitutional challenge to the judge’s testimony was “waived, forfeited, and procedurally defaulted” because Chein never raised constitutional objections before the judge presiding over Chein’s perjury trial.
In order to find Chein’s claim procedurally defaulted, we must determine whether an “independent and adequate state [procedural] ground” exists to support the state’s court procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9th Cir.2002). To constitute an adequate procedural bar, a state court procedural rule must be “clear, consistently applied, and well established at the time of the petitioner’s purported default.” Melendez v. Pliler, 288 F.3d at 1124 (citation omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge SHEA.
OPINION
RAWLINSON, Circuit Judge:
Edmund Chein (“Chein”) appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254, chal[750]*750lenging his conviction following a jury trial on three counts of perjury.
Chein asserts that he was deprived of his due process rights under law when: (1) the judge who presided over one of the underlying civil trials testified in Chein’s perjury trial; and (2) the prosecutor repeatedly referred to the facts of the underlying case in violation of an express ruling by the court. Chein also contends that there was insufficient evidence to support the perjury convictions. Because Chein’s due process claims were proeedurally defaulted and there was sufficient evidence to support a finding of perjury as to one of the statements, we AFFIRM the district court’s dismissal of Chein’s habeas petition.
I. Background
Chein faced perjury charges as a result of his testimony in a personal injury trial and his response to an interrogatory in a different civil ease.
Count 1 of the Information charged Chein with testifying falsely that “he was a specialist in orthopedic surgery.”
Chein’s specific testimony was this:
Q: Then when the residency ends, am I correct, in layman’s terms, you’re a regular doctor; right?
A: No. You are a specialist.
Q: You were a specialist following that—
A: Training period.
Q: —Training period? And your specialty, what would be the correct designation?
A: Physical medicine and orthopedic surgery.
A: If a doctor wants to specialize in a field, then they have to spend another four to five years, depending on a specialty, in a program called residency in a medical school affiliated hospital. And upon finishing that residency or specialty training program then he goes out and practices as a specialist.
Q: And did you receive your specialty qualifications?
A: Yes.
Q: What field is that specialty, Sir?
A: I’m board certified in December 1988 in — by the American Board of Orthopedic and Neurological Surgery.
Count 2 charged that Chein committed perjury when he testified that “he had one office location on October 9, 1989 and October 30, 1990 to November 2, 1990.” Chein testified particularly as follows:
Q: Doctor, how many office locations do you have now?
A: One.
Q: How many did you have on October the 9th, 1989?
A: One.
These two counts stemmed from a personal injury trial where Chein testified as a treating physician.
Count 4 of the Information charged that Chein committed perjury when he testified “that he attended and received a medical degree from American University School of Medicine in Florida.”
Chein provided the following response to an interrogatory:
“State:
a) the name and address of each school or other academic or vocational institution you have attended beginning with high school;
b) the date you attended;
c) the highest grade level you have completed;
d) the degree received.”
[751]*751Chein’s response was “American University School of Medicine, Florida, 1979-1980 M.D.”
The judge who presided over the personal injury civil trial testified during Cheiris perjury trial. Although Chein filed a motion in limine prior to trial seeking exclusion of the judge as a witness, Chein failed to object to the judge’s testimony at trial on the same basis (violation of due process) that he now asserts on appeal.
Chein also objected to the prosecutor’s delving into the facts of the underlying personal injury case. Despite the court’s sustaining of Cheiris objection, the prosecutor made several references to the facts of the underlying case. Chein objected to the references on relevancy grounds.
Chein appealed to the California Court of Appeal, which affirmed his conviction. The California Supreme Court denied Cheiris petition for review. Chein then filed the federal habeas petition that is the subject of this appeal.
II. Standard of Review
Our review of the district court’s decision to deny habeas relief is de novo. Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir.2002). The district court’s factual findings are reviewed for clear error. Id. Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, we will “grant habeas relief to a person in state custody only if the decision was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, or the claimed constitutional error resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id. (citations omitted).1
III. Discussion
A. Procedural Default
1. Testimony of the civil trial judge
Prior to the perjury trial, Chein filed a motion in limine objecting to the judge’s appearance as a witness. Chein challenged admission of the judge’s testimony on the bases of relevance and prejudice. Chein profferred no due process objection. In his motion for a new trial, Chein noted that admission of the trial judge’s testimony resulted in an “unfair trial.” However, Chein again failed to explicitly interpose a due process objection.
The California Court of Appeal ruled that Cheiris constitutional challenge to the judge’s testimony was “waived, forfeited, and procedurally defaulted” because Chein never raised constitutional objections before the judge presiding over Chein’s perjury trial.
In order to find Chein’s claim procedurally defaulted, we must determine whether an “independent and adequate state [procedural] ground” exists to support the state’s court procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9th Cir.2002). To constitute an adequate procedural bar, a state court procedural rule must be “clear, consistently applied, and well established at the time of the petitioner’s purported default.” Melendez v. Pliler, 288 F.3d at 1124 (citation omitted).
We have previously ruled that California’s “contemporaneous objection rule,” which requires objection at time of trial to preserve an issue for appeal, is an ade[752]*752quate procedural bar. See Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir.1981). Our decision in Melendez v. Pliler is not to the contrary. In that case, we simply recognized that “there are no California cases holding that the [contemporaneous objection] rule is applied consistently in situations in which an objection is made but the trial court in its discretion declines to consider it on the merits.” 288 F.3d at 1125 (emphasis in the original). In Chein’s case, the trial court ruled on the merits of the objections made by Chein. Unfortunately for Chein, his objections at the time of the perjury trial did not include the due process challenge presented on appeal. Chein’s failure to make a contemporaneous due process objection to the testimony of the trial judge bars pursuit of the due process challenge on appeal. The California Court of Appeal’s ruling to that effect was not an unreasonable application of clearly established Supreme Court precedent on procedural default. See Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (finding that exhaustion of state remedies requires that a petitioner assert his constitutional claims in state court).
2. Prosecutor’s reference to the facts of the underlying civil trial
Prior to the start of the perjury trial, the district court referred to rulings it had made off the record. In seeking to clarify the court’s prior rulings, Mr. Chein’s counsel stated:
“As I understand the ruling, it basically was that the totality of the [personal injury] case, we are not going to retry it here ...”
The Court replied:
“I think we’re very clear on that.”
However, the prosecutor almost immediately delved into the facts of the underlying case:
[Prosecutor]:
The limousine stopped again and was rear-ended by the Plymouth. A trial resulted, a lawsuit in which the two occupants of the limousine alleged personal injuries as a result of being rear-ended by the Plymouth.
They sued the driver of the Plymouth and the employer of the driver of the Plymouth ... In that personal injury lawsuit, there was testimony on each side. Every issue was contested. In fact, the very fact of whether or not the accident occurred was contested.
[The Court]:
Please confine your remarks to the evidence of the charges before the court. We’re not going to retry the civil matter.
The prosecutor continued:
We will present to you evidence that this Defendant lied because he was an expert witness, in quotes, so to speak in the personal injury lawsuit that arose from that accident. There were issues, many issues in that lawsuit, and the [sic] were claiming resulted from the accident the lawsuit was about. One of the Plaintiffs testified as the first witness. After he testified on direct examination, you’re going to learn from testimony at this proceeding that the defense attorney cross-examined him—
[Defense Counsel]:
Objection Your Honor. It’s not relevant to this case.
(Emphasis Added).
[The Court]:
Counsel, we’re talking about trying another case. The issue is, were these statements true, are they true or not [753]*753true. If you would confine your opening statement to that.
[Prosecutor]:
Certainly.
We are going to present to you evidence that there were other accidents that those plaintiffs were involved in; ... that the defense that was being put on by the defense attorneys was that the entire accident was a setup, a scam.
[Defense Counsel]:
Your Honor, I’m going to object. This has nothing to do with this case.
[The Court]:
Sustained. Counsel, the complaint alleges statements of qualification, medical training and background. That’s the issue.
[Prosecutor]:
... As I mentioned, we’ll present evidence that in the [personal injury] case, one of the issues was that the whole case was a setup, a scam.
[Defense Counsel]:
Objection, Your Honor. That’s irrelevant.
[The Court]:
Counsel, we’ve already discussed this matter. We’re not going to go into that area. That is not going to be relevant in this case.
(Emphasis Added).
Following the completion of opening statements, defense counsel expressed “concern” about the prosecution’s opening statement. The court chastised the prosecutor and expressed its inclination to instruct the jury to “disregard comments that this case may involve a set-up accident and/or fraud.” The court agreed with defense counsel that “in labeling the operation as somehow fraudulent I think [sic] goes beyond the bounds of what you need to prove ... the truth of these charges. So it’s probably not going to be relevant.” (Emphasis Added).
True to his expressed intentions, the court gave the following curative instructive to the jury when court resumed the following day:
... [Y]esterday, during the course of the opening statements, you heard mention of the words “fraud” and “set-up automobile accident,” and this case does not involve your contemplation of any of those issues and you are to disregard and treat as though you had never heard any mention of any of those items.
Unfortunately, the prosecutor strayed from the judge’s ruling yet again. During closing argument, the prosecutor made the following statement:
... If every case, every frivolous claim went to a jury ... And wasn’t that in fact the defense in the [personal injury] case, that the whole claim is bogus ...
[Defense Counsel]:
Objection. I thought we had discussion about this.
[The Court]:
We’re not trying the [personal injury] case, counsel ...
Once the jury retired, defense counsel noted for the record that “the problem [he] anticipated happened during the closing argument ...” The court responded that it “admonished [the prosecutor] to move on.”
The jury instructions contained the following statements of law pertinent to this claim:
1) [Statements made by the attorneys during the trial are not evidence;
2) Do not consider for any purpose any offer of evidence that is rejected by the court. You must treat it as though you had never heard it;
3) [A]n opening statement by the attorney is not evidence; and
[754]*7544) [Y]ou must determine the facts from the evidence received in this trial and not from any other source.
As with his objection to the judge’s testimony, Chein objected to the prosecutor’s comments only on the basis of relevancy. As a result, Chein’s due process challenge as to the prosecutorial misconduct assertion also falls victim to California’s contemporaneous objection requirement. See Hines, 658 F.2d at 673 (recognizing that a habeas petitioner’s failure to comply with a state’s “contemporaneous objection” requirement results in procedural default).
Because Chein’s due process claims were procedurally defaulted, we AFFIRM the district court’s denial of Chein’s habeas petition on those grounds.
B. Sufficiency of the Evidence
There is sufficient evidence to support a conviction if, construing the evidence in the light most favorable to the prosecution, a reasonable juror could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir.2002).
Perjury occurs when an individual provides an answer to a question under oath, that is literally untrue, and not merely “misleading by negative implication.” Bronston v. United States, 409 U.S. 352, 353, 359-60, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).
We have recently interpreted Bronston to preclude a perjury conviction if the allegedly perjurious answer is in response to a question that is “excessively vag-ue or fundamentally ambiguous.” United States v. Culliton, 300 F.3d 1139, 1141 (9th Cir.2002) (citations and internal quotation marks omitted); see Chia v. Cambra, 281 F.3d 1032, 1037 (9th Cir.2002) (stating that Ninth Circuit case law may be persuasive authority for determining what Supreme Court precedent is clearly established).
In contrast, “[i]f we determine that the questions were only arguably ambiguous or not ambiguous at all,” the perjury determination must be made by the jury. Culliton, 300 F.3d at 1141 (internal quotation marks omitted).
The crime of perjury also contains a materiality element, the absence of which precludes a finding of perjury. See People v. Kobrin, 11 Cal.4th 416, 45 Cal.Rptr.2d 895, 903 P.2d 1027, 1028 (1995). With those strictures in mind, we examine the three counts of which Chein was convicted.
Count 1 of the Information charged Chein with testifying falsely that “he was a specialist in orthopedic surgery.”
It is undisputed that Chein was board certified by the American Board of Orthopedic and Neurological Surgery. Although the relative credibility of Chein’s certifying board was challenged, the fact of Chein’s certification rendered his statement literally true, thereby precluding a finding of perjury under Bronston.
Additionally, the prosecution’s witness conceded that whether Chein could call himself a specialist in orthopedic surgery was a matter of semantics. Specifically, according to the prosecution witness, “[i]t would be okay to say, T have training in orthopedic surgery,’ but it would not be okay to say, ‘I’m a specialist in orthopedic surgery ...Even viewing the evidence in the light most favorable to the prosecution, such semantic hair splitting is insufficient to sustain a perjury conviction beyond a reasonable doubt.
Count 2 of the Information charged that Chein committed perjury when he testified that “he had one office location on [755]*755October 9, 1989 and October 30, 1990 to November 2,1990.”
Chein was asked: “how many office locations do you have now,” [October 30-November 2, 1990] and “[h]ow many did you have on October 9th, 1989?” To both questions, Chein replied, “One.”
Both questions were unambiguous, or at worst “arguably ambiguous,” making it appropriate to leave the perjury determination to the jury. See Culliton, 300 F.3d at 1141 (citations omitted). Additionally, the number of Chein’s office locations was material to his credibility as a treating physician in a personal injury case. A physician who operates out of a number of office locations is subject to the assertion that he functions as a “personal injury mill” rather than as a legitimate practitioner. See Louis J. Papa & Anthony Basile, No-Fault Insurance Fraud: An Overview, 17 Touro L.Rev. 611, 613 (2001) (referring to medical practitioners as potential participants in the “personal injury mill”).
The evidence offered to prove the falsity of Chein’s testimony on the number of his office locations was taken from 3780 Chein’s deposition dated October 9, 1989. On that date, Chein gave the following testimony regarding his office locations:
Q: Do you practice out of any other location at the present time?
A: Yes.
Q: What other locations?
A: I have a Southgate location, a Car-
son location and a Long Beach location.
Viewing the evidence in the light most favorable to the prosecution, a reasonable juror could conclude that Chein’s testimony at trial that he only had one office location was materially false. See People v. Post, 94 Cal.App.4th 467, 114 Cal.Rptr.2d 356, 361, 365 (2001) (reviewing the evidence that was before the jury in order to determine whether a perjury conviction was supported by sufficient evidence); Kobrin, 45 Cal.Rptr.2d 895, 903 P.2d at 1031 (holding that the determination of materiality in perjury cases is a question of fact to be decided by the jury).
Count 4 of the Information charged Chein with falsely responding to an Interrogatory by averring that the medical school he attended was in Florida, when in fact the medical school was sited in the Caribbean. Chein responded that the schools’ mailing address was in Florida and, therefore, his response was literally true. We need not determine whether Chein’s statement was literally true, however, because even if false, the statement lacks materiality. This statement was made in the context of a contractual dispute between Chein and an associate regarding accounting practices in connection with patient files. There is no evidence in the record that the location of Chein’s medical school was material to any of the issues in the case. Absent materiality, there is insufficient evidence to support a perjury conviction. See Kobrin, 45 Cal.Rptr.2d 895, 903 P.2d at 1028.
IV. Ineffective Assistance of Counsel Claim
We agree with the district court that Chein’s brief references to ineffective assistance in his Reply Brief to the California Court of Appeal and Petition for Review to the California Supreme Court were insufficient to preserve those claims for habeas review. See Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir.2001) (stating that when a petitioner has not presented the operative facts and legal theory upon which his claims are based to the state court, he has not preserved those claims for habeas review).
V. Conclusion
Chein’s claims that admission of the judge’s testimony and misconduct on the [756]*756part of the prosecutor resulted in a violation of his due process rights were proee-durally defaulted.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to support only the perjury count set forth in Count 2 of the Indictment, which charged that Chein testified falsely regarding the number of office locations he had. Nevertheless, the existence of one sustainable perjury count renders Chein’s conviction valid. See United States v. Barron, 172 F.3d 1153, 1160 (9th Cir.1999).2 The state court’s decision affirming Chein’s conviction was not an unreasonable application of clearly established Supreme Court precedent. Accordingly, we AFFIRM the district court’s dismissal of Chein’s habeas petition.
AFFIRMED.