                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 06 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RANDY JOE SKAINS,                                No. 09-15838

              Petitioner - Appellant,            D.C. No. 2:06-cv-00127-LKK-
                                                 CHS
  v.

STATE OF CALIFORNIA and BILL                     MEMORANDUM *
LOCKYER, Attorney General,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                        Argued and Submitted June 16, 2010
                             San Francisco, California

Before: RIPPLE, Senior Circuit Judge,** RYMER and FISHER, Circuit Judges.


       Randy Joe Skains appeals from the district court’s denial of his 28 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
§ 2254 habeas corpus petition.1 We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.




                                           I

      The California Court of Appeal’s determination of Skains’s Napue claim

was not contrary to clearly established federal law or an unreasonable application

of it. Napue v. Illinois, 360 U.S. 264, 269 (1959). A Napue claim will succeed

only if the prosecution knows or should have known that the testimony was false,

whereas Skains offers only speculation that the prosecutor knew or should have

known that Mills’s impeachment testimony was inaccurate at the time it was




      1
         We review de novo a district court’s decision to deny a habeas petition and
review its factual findings for clear error. McMurtrey v. Ryan, 539 F.3d 1112,
1118 (9th Cir. 2008). Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a federal court may grant habeas relief on a claim “adjudicated
on the merits” in state court if the decision “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 in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The standard of review is “highly
deferential . . . [and] demands that state-court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). If, however,
the state court denied a claim without reasons, we independently review the record
to determine whether its decision was contrary to, or an unreasonable application
of, clearly established federal law.

                                          2
given.2 In any event, there is no reasonable likelihood that Mills’s testimony could

have affected the verdict. Mills acknowledged that Skains and Miller could have

spoken regardless of their housing; no viable defense depended on the testimony;

and although Mills’ testimony was used to impeach Skains, the prosecution also

impeached him in several other ways.




                                           II

      “[T]he Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690

(1986) (internal quotation marks omitted). However, “[t]he accused does not have

an unfettered right to offer testimony that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400,

410 (1988). Reviewing the record independently, we conclude that excluding all

but two of Skains’s letters did not violate Skains’s right to present a full and

complete defense and was neither contrary to clearly established federal law nor an

unreasonable application of it. The excluded letters were cumulative, Skains


      2
        For this reason, the district court did not abuse its discretion in denying
Skains’s motion to depose the trial prosecutor. United States v. Zuno-Arce, 209
F.3d 1095, 1103 (9th Cir. 2000) (speculation is not a basis for an evidentiary
hearing on a Napue claim), overruled on other grounds by Valerio v. Crawford,
306 F.3d 742, 763-64 (9th Cir. 2002) (en banc).

                                           3
testified that he wrote many others, and the jury heard ample evidence about the

nature, extent, and duration of Skains’s fear of Miller.




                                          III

      Reviewing Skains’s claim of judicial bias de novo because the trial court

rejected it on procedural grounds and the California Supreme Court denied it

without comment, we conclude that the prosecutor’s minimal contribution to the

trial judge’s campaign did not create an appearance of bias or a risk of actual bias.

Cf. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009) (concluding

that a litigant’s expenditure of $3 million to support a judge’s campaign resulted in

“an extraordinary situation where the Constitution requires recusal”). Nor did the

trial judge’s evidentiary rulings demonstrate bias. See Liteky v. United States, 510

U.S. 540, 555 (1994).

      Reviewing the record independently, we conclude that the District Attorney

had no unconstitutional conflict of interest under clearly established federal law.

See Marshall v. Jerrico, Inc., 446 U.S. 238, 250-51 (1980); see also Young v.

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 808-09 (1987). Skains

failed to show that bringing a motion in limine to suppress evidence regarding the




                                           4
Miller arrest warrant was motivated by personal or professional interests instead of

legal merit.




                                          IV

      Considering the conduct of the trial court “in its context and under all the

circumstances,” Lowenfield v. Phelps, 484 U.S. 231, 237 (1988), the trial court’s

jury poll was not coercive, nor was it impermissibly one-sided or directed toward a

return of a guilty verdict. Both times the jury returned the verdict forms, it found

Skains guilty of second-degree murder on the only form that gave them the choice

to do so and found that Skains had used a deadly weapon, a finding which

presupposed Skains had been found guilty of a crime. In this context, the judge’s

queries pertained to a mistake in the verdict forms, not the verdict itself. Each

juror endorsed the guilty verdict for second-degree murder in spite of ample

opportunity to repudiate it. Moreover, Skains’s counsel did not object to the

judge’s method of polling the jury, which “indicates that the potential for coercion

argued now was not apparent to one on the spot.” Lowenfield, 484 U.S. at 240. In

these circumstances, we cannot say that the poll was constitutionally infirm under

clearly established federal law.

      AFFIRMED.


                                           5
