George Pilola v. Craig Koenig

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2022
• Docket: 20-55756
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GEORGE A. PILOLA, No. 20-55756

Petitioner-Appellant, D.C. No. 2:11-cv-06029-DOC-SHK v.

CRAIG KOENIG, Acting Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California J. Ross Carter, Magistrate Judge, Presiding

Argued and Submitted January 13, 2022 Pasadena, California

Before: CLIFTON and M. SMITH, Circuit Judges, and S. MURPHY, III,** District Judge.

George Pilola appeals the district court’s order denying his petition for habeas

corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we review the district

court’s order de novo, Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Applying

* 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. this standard, we affirm. Because the parties are familiar with the facts, we do not

recount them here, except as necessary to provide context to our ruling.

Pilola argues that the district court erred by applying deference pursuant to

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the

California Supreme Court’s decision because the California Supreme Court did not

address his claims “on the merits.” See 28 U.S.C. § 2254(d). We disagree. The

California Supreme Court did not provide any reasons for its decision, so we must

“look through” that decision to the California Court of Appeal’s decision absent

some evidence that the California Supreme Court relied on a different ground than

the California Court of Appeal. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); see

also Avila v. Galaza, 297 F.3d 911, 918 & n.6 (9th Cir. 2002). This is true

notwithstanding the fact that the California Supreme Court has held as a matter of

state law that its denial of a petition for review does not signal its agreement with

the Court of Appeal’s decision. See Wilson, 138 S. Ct. at 1196; People v. Davis, 147

Cal. 346, 350 (1905).1 Pilola has not provided any evidence to rebut the look-through

presumption, so we must look to the California Court of Appeal’s decision to

determine the California Supreme Court’s reasoning. See Wilson, 138 S. Ct. at 1195.

The California Court of Appeal held that Pilola “fail[ed] to state sufficient

1 In light of Davis, which addresses the import of the California Supreme Court’s denial of a petition for review under state law, we deny Pilola’s motion for judicial notice (Dkt. 15).

2 facts demonstrating entitlement to the relief requested,” and cited People v. Duvall,

9 Cal.4th 464, 474–75 (1995). This explanation leaves open the possibility that the

court denied the petition on procedural grounds (i.e., Pilola’s allegations were too

vague or conclusory) or on the merits (i.e., Pilola’s allegations were satisfactory, but

they failed to make out the elements of a claim pursuant to Brady v. Maryland, 373

U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959)). We must construe

ambiguous state court decisions as decisions on the merits “if such a construction is

plausible.” Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008); see also

Crittenden v. Ayers, 624 F.3d 943, 959–60 (9th Cir. 2010). Here, the construction is

plausible. Therefore, we must construe the California Supreme Court’s decision to

be on the merits and must apply AEDPA deference.

Because AEDPA deference applies, we cannot grant Pilola’s petition unless

the California Supreme Court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). This requirement

means we may not grant federal habeas relief if a fairminded jurist could agree with

the California Supreme Court’s decision. See Harrington v. Richter, 562 U.S. 86,

101 (2011). When a state court does not provide reasons for its decision, we “must

determine what arguments or theories . . . could have supported[] the state court’s

decision; and then . . . ask whether it is possible fairminded jurists could disagree

3 that those arguments or theories are inconsistent with the holding in a prior decision

of [the United States Supreme] Court.” Id. at 102.

This standard is not satisfied here because a fairminded jurist could conclude

that there was no reasonable likelihood that the unmatched fingerprint, the testimony

about the lack of prints from Detective Inskeep, and the prosecutor’s comments in

closing argument could have affected the jury’s verdict. See United States v. Bagley,

473 U.S. 667, 679 n.9 (1985) (setting forth the materiality standard for a Napue

claim).2

The probative value of the unmatched print is limited. First, the victim—

Pilola’s then wife—testified that the intruder was wearing gloves, so one would not

expect the intruder’s fingerprints to have been on the beer bottle. Second, Pilola does

not allege that the fingerprint was of sufficiently high quality to match anyone. It is

possible it came back as “NO MAKE” because it was of such low quality that it

could not produce a match, not because it affirmatively did not match Pilola. Third,

even if the print conclusively did not match Pilola, it could have been the victim’s

or a store clerk’s, which would not cast doubt on Pilola’s involvement.

2 Because a fairminded jurist could conclude that the unmatched print does not satisfy Napue’s materiality standard, a fairminded jurist could also conclude that it does not satisfy Brady’s more demanding materiality standard. See Bagley, 473 U.S. at 682 (setting out Brady materiality standard); Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008) (observing that the materiality standard for a Brady claim is more stringent than for a Napue claim).

4 On the other hand, the evidence of Pilola’s guilt was strong. The victim

testified that she had “no doubts whatsoever” the intruder was her husband because

she saw his face in the bathroom, she recognized the way he was talking to her, he

had broken down her bedroom door the same way many times before, and when her

and Pilola’s 18-month-old son came into the hallway crying, the intruder picked him

up and was able to quickly comfort him and put him back to sleep the same way

Pilola typically did. Further, minutes after enduring a horrific attack, the victim

called her oldest son, told him that Pilola had attacked her, and asked him to protect

her other children. While it is possible the victim quickly composed herself after the

attack and formulated a plot to frame Pilola as she ran to her neighbor’s house, it is

exceedingly unlikely.

Therefore, considering the record as a whole, a fairminded jurist could

conclude that there was no reasonable probability that the unmatched fingerprint, the

testimony about the lack of prints from Detective Inskeep, and the prosecutor’s

comments in closing argument could have affected the jury’s verdict. As a result, we

must deny Pilola’s petition.3 28 U.S.C. § 2254(d)(1).

AFFIRMED.

3 We deny without prejudice Pilola’s motion for an order allowing his expert to examine the beer bottle (Dkt. 25).