                                                                          FILED
                           NOT FOR PUBLICATION                              JUL 18 2013

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



                            FOR THE NINTH CIRCUIT


JAMES EUGENE EDWARDS,                            No. 11-16332

              Petitioner - Appellant,            D.C. No. 3:08-cv-02841-WHA

       v.
                                                 MEMORANDUM*
GARY SWARTHOUT, Warden,

              Respondent - Appellee.

DAVID E. EDWARDS,                                No. 11-16337

              Petitioner - Appellant,            D.C. No. 3:08-cv-02842-WHA

       v.

GARY SWARTHOUT, Warden,

              Respondent - Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                      Argued and Submitted March 15, 2013
                           San Francisco, California



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, FISHER and NGUYEN, Circuit Judges.

      California state prisoners James Edwards and David Edwards appeal the

district court’s denial of their 28 U.S.C. § 2254 habeas petitions. The court has

been informed that James Edwards died on March 21, 2013. His appeal is

dismissed as moot. See Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003).1 With

respect to David Edwards’ petition, we have jurisdiction under 28 U.S.C. §§ 1291

and 2253, and we affirm.

      1. Appellant’s briefing failed to address or apply the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which sets

forth the applicable, highly deferential substantive standard for federal habeas

review of state cases. The opening brief did not mention or discuss the last

reasoned state court decision, nor did appellant include this decision in the excerpts

of record. Appellant neither argued nor demonstrated why the state court

proceeding “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,” 28 U.S.C. § 2254(d)(1), or why the state

court proceeding “resulted in a decision that was based on an unreasonable

      1
        Even if his appeal were not moot, we would affirm the district court’s
denial of James Edwards’ habeas petition for the same reasons we affirm the denial
of David Edwards’ petition.

                                          2
determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). Instead, appellant simply sought de novo review of

his constitutional claims. Issues not discussed in the opening brief are deemed

waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).

Accordingly, any argument that appellant is entitled to relief under AEDPA is

waived.

      2. Even if the issues were preserved, appellant has not satisfied AEDPA’s

highly deferential standard. Both the California Court of Appeal and the state

habeas court looked to appellant’s course of conduct both before and after the

arraignment, noting his refusal to enter a plea, to waive time, to retain counsel after

several continuances or to accept court appointed counsel before finally opting to

represent himself. The state habeas court found that in “these circumstances” there

was “no denial of a formal arraignment” or “denial of counsel at arraignment, and

the trial court was justified in entering a plea of not guilty [without prejudice] on

their behalf.” This conclusion was not contrary to or an unreasonable application

of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Hamilton v. Alabama,

368 U.S. 52 (1961); see also Bell v. Cone, 535 U.S. 685 (2002); United States v.

Cronic, 466 U.S. 648 (1984); United States v. Wade, 388 U.S. 218 (1967). Nor




                                           3
was it based on an unreasonable determination of the facts. See 28 U.S.C.

§ 2254(d)(2).

      CASE NO. 11-16332 DISMISSED AS MOOT.

      CASE NO. 11-16337 AFFIRMED.




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