Joshua Giddings v. Austin Knudsen

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2023
• Docket: 21-35953
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSHUA DAVID GIDDINGS, No. 21-35953

Petitioner-Appellant, D.C. No. 6:16-cv-00026-DLC

v. MEMORANDUM* AUSTIN KNUDSEN; JIM SALMONSEN,

Respondents-Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted May 11, 2023** Seattle, Washington

Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.

Joshua David Giddings brings a habeas petition challenging his 2007

Montana state conviction for the deliberate homicide that took the life of Amy

Rolfe, tampering with or fabricating physical evidence, and criminal possession of

a dangerous drug (methamphetamine). Giddings raises three certified issues on

* 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). appeal. First, that his due process right to be present during three pretrial hearings

was violated. Second, that the district court erred in rejecting Giddings’s Brady

claim. And third, that the district court erred in concluding that Giddings’s claim

concerning the state court’s interpretation of Rule 404(b) of the Montana Rules of

Evidence is not a cognizable claim under federal habeas review. Giddings also

raises two uncertified issues on appeal. As the parties are familiar with the facts of

this case, we do not repeat them here. Because Giddings’s claims are either

procedurally defaulted, unexhausted, waived, barred under 28 U.S.C. § 2253, or

the district court did not err in its analysis, we affirm.

We review a denial of a petition for writ of habeas corpus de novo. Earp v.

Davis, 881 F.3d 1135, 1142 (9th Cir. 2018). “Factual findings and credibility

determinations made by the district court in the context of granting or denying [a

petition for writ of habeas corpus] are reviewed for clear error.” Id. (alteration in

original) (citing Larsen v. Soto, 742 F.3d 1083, 1091–92 (9th Cir. 2013)).

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

we may not grant habeas relief unless the state court’s adjudication of the merits of

a federal claim “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law” or “resulted in a

decision that was based on an unreasonable determination of the facts.” 28 U.S.C.

§ 2254(d).

2 1. Giddings first argues that his right to be present during a critical stage of

his trial was violated when three pretrial hearings were held in his absence. “[A]

state prisoner must exhaust available state remedies before presenting his claim to

a federal habeas court.” Davila v. Davis, 582 U.S. 521, 527 (2017) (citing 28

U.S.C. § 2254(b)(1)(A)). Additionally, “a federal court may not review federal

claims that were procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural rule.” Id.

Additionally, “failure to object to a magistrate judge’s factual findings waives the

right to challenge those findings.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th

Cir. 2015) (citation omitted).

Here, Giddings (1) procedurally defaulted and failed to exhaust by not

raising the due process claims in his state post-conviction petition, and (2) waived

a challenge to preserve on this appeal his due process violation claims by failing to

object to the magistrate judge’s report and recommendation on these claims.

Therefore, he has waived any right to challenge the factual findings the federal

district court made about his presence at those three hearings—namely that he

failed to establish he was not present at the November and December 2006

hearings.

2. Next, Giddings argues that Detective Mark Ekola destroyed exculpatory

evidence in violation of Brady v. Maryland when he either shredded or threw away

3 his handwritten interview notes after memorializing them in his typed police

reports and failed to record the entirety of three of his four interviews with witness

Richard Alan King.

“There is no dispute that Brady constitutes clearly established federal law for

purposes of AEDPA.” Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015).

To demonstrate that the state court erred, Giddings had to “show either that ‘the

state court applie[d] a rule that contradicts the governing law set forth in [Brady]’ .

. . or that the state court’s application of Brady was ‘objectively unreasonable.’”

Id. (first citing Williams v. Taylor, 529 U.S. 362, 405 (2000); and then citing White

v. Woodall, 572 U.S. 415, 419 (2014)).

Giddings provides nothing more than his personal beliefs and conclusory

statements that the notes or the unrecorded interviews may have been exculpatory.

The magistrate judge and the district court properly concluded that “the Montana

Supreme Court’s adjudication of this issue did not constitute an unreasonable

application of Brady . . . or otherwise present an unreasonable determination of

facts.”

3. Finally, Giddings argues that the Montana state court violated his right to

present a defense by limiting his cross-examination of King at trial by excluding

certain evidence under Rule 404(b) of the Montana Rules of Evidence.

Federal habeas relief “does not lie for errors of state law.” Estelle v.

4 McGuire, 502 U.S. 62, 67 (1991) (internal citation omitted). “It is well settled that

a state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas

relief only if it renders the state proceedings so fundamentally unfair as to violate

due process.” Demetrulias v. Davis, 14 F.4th 898, 907 (9th Cir. 2021).

The magistrate judge and the district court both properly rejected this claim

because federal habeas relief cannot stem from an alleged error in interpreting state

law. Giddings presented no evidence that the proceedings below were so

fundamentally unfair as to constitute a federal due process violation. The evidence

the trial court kept out was propensity evidence that is not allowed under Mont. R.

Evid. 404(b). The state trial court did allow Giddings to introduce evidence of

King’s prior conviction for deceptive practices, drug use, and bad feelings towards

Amy’s boyfriend Mike Mix. Moreover, Giddings fails to show that the state

court’s denial of this claim “was contrary to, or involved an unreasonable

application of, clearly established Federal law” or “was based on an unreasonable

determination of the facts,” as required by 28 U.S.C. § 2254(d).

4. Finally, Giddings is barred from raising his two uncertified questions on

appeal. The text of 28 U.S.C. § 2253 unequivocally states that “unless a circuit

justice or judge issues a certificate of appealability, an appeal may not be taken in

the court of appeals.” We deny the request to expand the certificate of

appealability regarding the uncertified issues because a reasonable jurist would not

5 “find the district court’s assessment of the constitutional claims debatable or

wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation omitted); see

also Ninth Cir. Ct. R. 22-1(e); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.

2005).

AFFIRMED.