                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 05 2013

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



                            FOR THE NINTH CIRCUIT


WILLIAM PETER NEW,                               No. 11-57055

              Petitioner - Appellant,            D.C. No. 3:09-cv-02609-JLS-POR

  v.
                                                 MEMORANDUM*
DOMINGO URIBE, Jr., Warden; THE
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                        Argued and Submitted April 12, 2013
                               Pasadena, California

Before: RAWLINSON and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Appellant William New (New) appeals the district court’s denial of his

petition for a writ of habeas corpus.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
      1.     In concluding that the trial court did not err in holding that the

justification for the delay outweighed any prejudice to New, see People v. New, 77

Cal. Rptr. 3d 503, 520-21 (Ct. App. 2008), the state appellate court did not

unreasonably apply clearly established federal law. The relevant Supreme Court

precedents explicitly decline to set out a clear test for balancing justification

against prejudice, asserting that such balancing requires case-by-case

consideration. See United States v. Lovasco, 431 U.S. 783, 796-97 (1977); United

States v. Marion, 404 U.S. 307, 324-25 (1971). In light of the lack of a clear test,

we cannot say that the state court applied Supreme Court law in a manner that was

objectively unreasonable in finding that the justification here outweighed the

prejudice. See Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011); see also

Cudjo v. Ayers, 698 F.3d 752, 761 (9th Cir. 2012) (“[T]he only definitive source of

clearly established federal law under AEDPA is the holdings . . . of the Supreme

Court . . .”) (citations and internal quotation marks omitted) (emphasis in the

original). Nor can we say that the state court unreasonably applied clearly

established Supreme Court law by noting that a federal due process claim based on

pre-indictment delay requires a showing that the delay was undertaken by the State

to gain a tactical advantage over the defendant. See New, 77 Cal. Rptr. 3d at 515.

Though our court has held that there is no such requirement, see United States v.


                                      Page 2 of 4
Moran, 759 F.2d 777, 781 (9th Cir. 1985), other courts, including the California

Supreme Court, disagree, see, e.g., People v. Catlin, 26 P.3d 357, 373 (Cal. 2001).

It was not unreasonable for the state court to side with the California Supreme

Court. See Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (“[C]ircuit precedent

may [not] be used to refine or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule that th[e] Court has not announced. . . .”)

(citations omitted). Morever, even if it was unreasonable, any error was harmless.

The state court noted that California law does not require a showing of intended

tactical advantage for a valid state due process claim, yet still found no state

violation. New, 77 Cal. Rptr. 3d at 520-21. Thus any error as to the federal

standard did not have a “substantial and injurious” effect on the defendant because

the state court would have come to the same conclusion on the federal claim even

if it had not required a showing of intended tactical advantage. See Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993).



      2.     New has failed to point us to clearly established Supreme Court

precedent that misjoinder of claims against a defendant can violate due process,

and we have discovered none. Even if there were clearly established precedent, the

state court reasonably concluded that the joinder of both murder counts did not


                                      Page 3 of 4
deprive New of due process. A joinder of charges only violates due process if the

jury’s verdict is prejudicially influenced. Where, as here, evidence of both murders

was relatively strong and cross-admissible to prove identity or intent, and the trial

court instructed the jury to consider each murder charge separately, the joinder of

both murder counts did not prejudice New. See Davis v. Woodford, 384 F.3d 628,

638-39 (9th Cir. 2004), as amended.



      AFFIRMED.




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