NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHN C. RUSSELL, No. 21-55992
Petitioner-Appellant, D.C. No. 2:19-cv-01838-DSF-ADS v.
PATRICK COVELLO, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 17, 2023 Pasadena, California
Before: LEE, BRESS, and MENDOZA, Circuit Judges.
In 2014, Petitioner John C. Russell was found guilty, in California state
court, of the cold-case murder of Alma Zuniga, who was raped and killed in 1979.
Russell appeals the district court’s order denying his petition for habeas corpus
brought pursuant to 28 U.S.C. § 2254. The district court issued a certificate of
appealability on four issues. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and 2253, and we affirm.
We review de novo a district court’s denial of a § 2254 petition. Balbuena v.
Sullivan, 980 F.3d 619, 628 (9th Cir. 2020). We review a § 2254 habeas petition
under the “highly deferential standard for evaluating state-court rulings.” Id.
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). A federal
court may only grant habeas relief if the state court’s ruling was (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Where, as here, the state
supreme court decision summarily denies the petition for review, we “look
through” the unexplained decision to the last reasoned state court decision. Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018).
1. First, Russell argues his right to due process was violated when the trial
court failed to properly determine the admissibility of certain scientific evidence.
In People v. Kelly, 549 P.2d 1240 (Cal. 1976), the California Supreme Court set
forth the three-prong test California trial courts use to analyze the admissibility of
new scientific techniques, sometimes referred to as the Kelly-Frye formulation.
People v. Smith, 132 Cal. Rptr. 2d 230, 233–34 (Ct. App. 2003) (quotation
omitted). In his petition, Russell argues the state trial court erred when it failed to
2 conduct a pre-trial Kelly-Frye hearing as to (1) whether the DNA testing methods
were generally accepted in the scientific community under prong one of Kelly, and
(2) whether correct scientific procedures were used to apply a valid scientific
technique under prong three of Kelly.
Russell has failed to establish he is entitled to federal habeas relief on either
ground. The Kelly-Frye test is a California state law standard. See People v.
Leahy, 882 P.2d 321, 323 (Cal. 1994). Under California law, “[e]vidence obtained
by use of a new scientific technique is admissible only if the proponent of the
evidence establishes at a hearing (sometimes called a first prong Kelly hearing) that
the relevant scientific community generally accepts the technique as reliable.”
People v. Cordova, 358 P.3d 518, 536 (Cal. 2015). “However, proof of such
acceptance is not necessary if a published appellate opinion affirms a trial court
ruling admitting evidence obtained through use of that technique . . . .” Id.
The state court determined the technique Russell challenged was not the
proper subject of a first-prong Kelly hearing because the PCR-STR technology at
issue had already been approved in People v. Henderson, 132 Cal. Rptr. 2d 255,
268 (Ct. App. 2003). Thus, habeas relief is inappropriate because this court is
bound by the state court’s holding. Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(per curiam) (“[A] state court’s interpretation of state law . . . binds a federal court
sitting in habeas corpus.”). Although Russell argues the state court erred in relying
3 upon Henderson, “federal habeas corpus relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quotation omitted). Moreover, Russell
failed to identify any clearly established federal law, as determined by the Supreme
Court, that the state court acted “contrary to” or “unreasonab[ly] appli[ed].” 28
U.S.C. § 2254(d)(1); see Wright v. Van Patten, 552 U.S. 120, 125–26 (2008) (per
curiam) (where no decision of the Supreme Court “squarely addresses” an issue or
provides a “categorical answer” to the question before the state court, AEDPA bars
relief).
Russell’s argument also fails as to Kelly’s third prong, which “inquires into
the matter of whether the procedures actually utilized in the case were in
compliance with that methodology and technique, as generally accepted by the
scientific community.” People v. Venegas, 954 P.2d 525, 545 (Cal. 1998). “The
third-prong inquiry is thus case specific; it cannot be satisfied by relying on a
published appellate decision.” Id. (citations and internal quotation marks omitted).
Here, the trial court made a case-specific inquiry, and the state appellate
court affirmed the denial of the motion for the third-prong Kelly hearing. As in
prong one inquiries, this court must give deference to the state court’s
determination of state law. Richey, 546 U.S. at 76. This court is bound by the
state court’s conclusion that the trial court was entitled to credit the prosecution’s
expert’s declaration, and that admission of the DNA evidence was permissible
4 under state law, even if the appellate court misapplied its own laws. See id.;
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam). Moreover, a petitioner
cannot simply append “due process” to the end of what is otherwise a challenge to
a state law ruling to federalize the error. See McGuire, 502 U.S. at 67–68 (“[I]t is
not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”). Russell failed to establish that his due process rights
were violated, and habeas relief is inappropriate. That is especially so considering
that Russell had ample opportunity to question the reliability of the prosecutions’
expert evidence and introduce his own competing expert at trial.
2. Next, Russell argues the California Court of Appeal unreasonably applied
federal constitutional law and unreasonably determined the facts when it held that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHN C. RUSSELL, No. 21-55992
Petitioner-Appellant, D.C. No. 2:19-cv-01838-DSF-ADS v.
PATRICK COVELLO, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 17, 2023 Pasadena, California
Before: LEE, BRESS, and MENDOZA, Circuit Judges.
In 2014, Petitioner John C. Russell was found guilty, in California state
court, of the cold-case murder of Alma Zuniga, who was raped and killed in 1979.
Russell appeals the district court’s order denying his petition for habeas corpus
brought pursuant to 28 U.S.C. § 2254. The district court issued a certificate of
appealability on four issues. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and 2253, and we affirm.
We review de novo a district court’s denial of a § 2254 petition. Balbuena v.
Sullivan, 980 F.3d 619, 628 (9th Cir. 2020). We review a § 2254 habeas petition
under the “highly deferential standard for evaluating state-court rulings.” Id.
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). A federal
court may only grant habeas relief if the state court’s ruling was (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Where, as here, the state
supreme court decision summarily denies the petition for review, we “look
through” the unexplained decision to the last reasoned state court decision. Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018).
1. First, Russell argues his right to due process was violated when the trial
court failed to properly determine the admissibility of certain scientific evidence.
In People v. Kelly, 549 P.2d 1240 (Cal. 1976), the California Supreme Court set
forth the three-prong test California trial courts use to analyze the admissibility of
new scientific techniques, sometimes referred to as the Kelly-Frye formulation.
People v. Smith, 132 Cal. Rptr. 2d 230, 233–34 (Ct. App. 2003) (quotation
omitted). In his petition, Russell argues the state trial court erred when it failed to
2 conduct a pre-trial Kelly-Frye hearing as to (1) whether the DNA testing methods
were generally accepted in the scientific community under prong one of Kelly, and
(2) whether correct scientific procedures were used to apply a valid scientific
technique under prong three of Kelly.
Russell has failed to establish he is entitled to federal habeas relief on either
ground. The Kelly-Frye test is a California state law standard. See People v.
Leahy, 882 P.2d 321, 323 (Cal. 1994). Under California law, “[e]vidence obtained
by use of a new scientific technique is admissible only if the proponent of the
evidence establishes at a hearing (sometimes called a first prong Kelly hearing) that
the relevant scientific community generally accepts the technique as reliable.”
People v. Cordova, 358 P.3d 518, 536 (Cal. 2015). “However, proof of such
acceptance is not necessary if a published appellate opinion affirms a trial court
ruling admitting evidence obtained through use of that technique . . . .” Id.
The state court determined the technique Russell challenged was not the
proper subject of a first-prong Kelly hearing because the PCR-STR technology at
issue had already been approved in People v. Henderson, 132 Cal. Rptr. 2d 255,
268 (Ct. App. 2003). Thus, habeas relief is inappropriate because this court is
bound by the state court’s holding. Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(per curiam) (“[A] state court’s interpretation of state law . . . binds a federal court
sitting in habeas corpus.”). Although Russell argues the state court erred in relying
3 upon Henderson, “federal habeas corpus relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quotation omitted). Moreover, Russell
failed to identify any clearly established federal law, as determined by the Supreme
Court, that the state court acted “contrary to” or “unreasonab[ly] appli[ed].” 28
U.S.C. § 2254(d)(1); see Wright v. Van Patten, 552 U.S. 120, 125–26 (2008) (per
curiam) (where no decision of the Supreme Court “squarely addresses” an issue or
provides a “categorical answer” to the question before the state court, AEDPA bars
relief).
Russell’s argument also fails as to Kelly’s third prong, which “inquires into
the matter of whether the procedures actually utilized in the case were in
compliance with that methodology and technique, as generally accepted by the
scientific community.” People v. Venegas, 954 P.2d 525, 545 (Cal. 1998). “The
third-prong inquiry is thus case specific; it cannot be satisfied by relying on a
published appellate decision.” Id. (citations and internal quotation marks omitted).
Here, the trial court made a case-specific inquiry, and the state appellate
court affirmed the denial of the motion for the third-prong Kelly hearing. As in
prong one inquiries, this court must give deference to the state court’s
determination of state law. Richey, 546 U.S. at 76. This court is bound by the
state court’s conclusion that the trial court was entitled to credit the prosecution’s
expert’s declaration, and that admission of the DNA evidence was permissible
4 under state law, even if the appellate court misapplied its own laws. See id.;
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam). Moreover, a petitioner
cannot simply append “due process” to the end of what is otherwise a challenge to
a state law ruling to federalize the error. See McGuire, 502 U.S. at 67–68 (“[I]t is
not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”). Russell failed to establish that his due process rights
were violated, and habeas relief is inappropriate. That is especially so considering
that Russell had ample opportunity to question the reliability of the prosecutions’
expert evidence and introduce his own competing expert at trial.
2. Next, Russell argues the California Court of Appeal unreasonably applied
federal constitutional law and unreasonably determined the facts when it held that
the trial court properly excluded evidence that, according to Russell, suggests that
Zuniga was murdered by a third party. Again, Russell’s argument fails.
The exclusion of certain types of critical evidence may violate a defendant’s
due process rights if it deprives the defendant of “a fair opportunity to defend
against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294
(1973). States, however, “have broad latitude under the Constitution to establish
rules excluding evidence from criminal trials.” Nevada v. Jackson, 569 U.S. 505,
509 (2013) (per curiam) (quotation omitted).
Assuming Russell’s challenge to the state courts’ application of state
5 evidentiary rules implicates the U.S. Constitution, he still failed to demonstrate that
the state court unreasonably applied clearly established law, as determined by the
Supreme Court. Id. at 509. At trial, Russell did not have an automatic, guaranteed
right to present all possible evidence, however speculative, accusing someone else
of the crime. Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir. 2010)
(recognizing that a defendant “does not have an ‘unfettered right’ to present any
evidence he or she wishes” (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988))).
And as both the district court and state appellate court noted, the trial court’s
denial of certain evidence implicating a third party did not completely preclude
Russell from offering evidence that a third party killed Zuniga. It is not a question
of whether we would have allowed the disputed evidence to be admitted. Instead,
the state court’s thorough analysis, as a matter of both California law and on the
facts, was not an unreasonable application of Chambers v. Mississippi.
Moreover, even if a state court’s evidentiary decision is contrary to or an
unreasonable application of clearly established federal law, habeas relief is not
automatic. Rather, the claim is still reviewed under a harmless error standard,
where “an error is harmless on collateral review unless it results in ‘actual
prejudice,’” that is, if it has a “substantial and injurious” effect on the verdict.
Mays v. Clark, 807 F.3d 968, 980 (9th Cir. 2015) (quoting Davis v. Ayala, 576
U.S. 257, 267–68 (2015)); see also Brecht v. Abrahamson, 507 U.S. 619, 637
6 (1993). Habeas relief is proper when “the record is so evenly balanced that a
‘conscientious judge is in grave doubt as to the harmlessness of an error.’” Gautt
v. Lewis, 489 F.3d 993, 1016 (9th Cir. 2007) (quoting O’Neal v. McAninch, 513
U.S. 432, 438 (1995).
Here, Russell was able to introduce certain evidence implicating a third
party, including testimony that on the night of the crimes, (1) Zuniga and a man
had an argument about the man’s smoking at the café counter, (2) the man was
“kind of aggressive,” (3) when the man got up, a gun fell out of his boot, and (4)
the man resembled a person known to have known Zuniga. From this testimony,
Russell’s counsel argued to the jury that on the night she was killed, Zuniga had a
hostile encounter with a man she knew, a man who was armed with a gun.
Applying Brecht’s harmless error standard, Russell’s third-party culpability
evidence, in contrast with the other significant evidence of his guilt, does not raise
“grave doubt[s]” about his conviction. Id. at 1016.
3. Finally, Russell argues cumulative error warrants granting the writ of
habeas corpus. Russell’s individual allegations of error, however, are
unmeritorious, and therefore his cumulative error argument necessarily fails.
United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).
4. Russell’s request for judicial notice (Dkt. No. 36) is denied as moot.
AFFIRMED.