                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 03 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LORRAINE NETHERTON,                              No. 15-35052

              Petitioner - Appellant,            D.C. No. 2:13-cv-01281-JCC

 v.
                                                 MEMORANDUM*
JANE PARNELL, Superintendent,
Washington Corrections Center for
Women,

              Respondent - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
               John C. Coughenour, Senior District Judge, Presiding

                      Argued and Submitted February 1, 2016
                               Seattle, Washington

Before: KOZINSKI and O’SCANNLAIN, Circuit Judges and ORRICK,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable William Horsley Orrick III, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
      Lorraine Netherton appeals the district court’s denial of her habeas petition

challenging various aspects of her Washington conviction for second-degree

murder. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                          I

      The Washington Court of Appeals’ dismissal of Netherton’s petition

constituted an “adjudicat[ion] on the merits” for purposes of the Antiterrorism and

Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), because the decision

issued by the court addressed “the substance of the constitutional claim[s]

advanced,” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). That

Netherton’s claims were disposed of by an order from the Chief Judge, as

authorized under Washington law, see Wash. R. App. P. 16.11(b), rather than by a

three-judge panel, is irrelevant as “adjudication necessary to trigger AEDPA

review is not restricted to any particular form of hearing,” Lambert, 393 F.3d at

967. Thus the Washington Court of Appeals’ denial of Netherton’s claims must be

upheld unless it was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or “was based on an unreasonable determination of the facts” presented. 28

U.S.C. § 2254(d).




                                          2
                                          II

      The Washington Court of Appeals’ disposition of Netherton’s claims under

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972), warrants AEDPA deference. To establish a Brady violation, “a defendant

must show that 1) the prosecution suppressed evidence that 2) was favorable to the

accused and 3) was material.” Barker v. Fleming, 423 F.3d 1085, 1094 (9th Cir.

2005). The court’s disposition was a reasonable application of clearly established

law because Netherton failed to demonstrate that the prosecution had in fact

suppressed impeachment evidence relating to Detective Denny Gulla or ballistics

expert Evan Thompson.

      Nor did the district court err in denying Netherton discovery regarding such

claims. When a state court adjudicates a claim on the merits, “evidence introduced

in federal court has no bearing on § 2254(d)(1) review.” Cullen v. Pinholster, 563

U.S. 170, 185 (2011). Netherton was therefore not entitled to discovery because the

Washington Court of Appeals considered and rejected her Brady challenges on the

merits.

                                         III

      The Washington Court of Appeals’ determination that defense counsel’s

failure to take photographs of Netherton in jail did not amount to ineffective


                                          3
assistance of counsel was not unreasonable. Given the evidence that Netherton in

fact had not suffered significant visible injury, and the fact that any new

photographs would have been taken days after her encounter with Desiree Rants,

Netherton failed to demonstrate that there was “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Because the

Washington Court of Appeals’ conclusion that Netherton suffered no prejudice

was a reasonable application of law to the facts of the case, the decision must be

upheld. See 28 U.S.C. § 2254(d).

                                          IV

      The Washington Court of Appeals’ determination that the State’s drive-by

shooting charge did not constitute vindictive prosecution was not unreasonable.

Netherton failed to demonstrate that the prosecutor’s charge was wholly

unsupported by probable cause, see Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978), and there is no indication that the State filed the additional charge solely

for the purpose of punishing Netherton for exercising a constitutional or statutory

right, see United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011).

      Furthermore, the Washington Court of Appeals determined that Netherton

was not prejudiced by such a charge. Because the drive-by shooting charge was


                                           4
dropped before trial, and because any negative effect that resulted from its

presence on the docket was not significant enough to demonstrate that Netherton

was prejudiced as a result, the court’s determination that Netherton suffered no due

process violation was reasonable.

                                              V

      Given the record before the Washington Court of Appeals, no “reasonable

jurist” could find the Court of Appeals’ assessment of the uncertified issues

debatable. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). We thus decline

to expand the certificate of appealability.

      Netherton’s “Motion to File Additional Excerpt of Record,” filed on

February 4, 2016, is granted.

      AFFIRMED.




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