                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 22 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MARCUS BORGES,                                   No.   13-57156

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-08157-CAS-E
 v.

DAVE DAVEY, Warden,                              MEMORANDUM*

              Respondent-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted July 5, 2016
                              Pasadena, California

Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON,** District
Judge.

      California state prisoner Marcus Borges appeals the district court’s denial of

his petition for habeas corpus, in which he challenges his conviction for second-

degree robbery on the grounds that three adverse rulings by the trial court violated

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
his constitutional rights: first, the trial court’s sua sponte ruling limiting defense

counsel’s cross-examination of the victim during trial; second, the trial court’s

admission of testimony by the investigating officer that, in his opinion, the victim

was robbed and Borges was the robber; and third, the trial court’s denial of

Borges’s motion for a new trial, through which he sought to introduce a new

percipient witness who could purportedly testify to Borges’s innocence. The

district court denied Borges habeas relief on all three claims of constitutional error.

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

      1.     Applying the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we hold that the California Court of Appeal’s determination that

Borges’s Sixth Amendment right to cross-examine witnesses was not violated by

the trial court’s limitation on defense counsel’s questioning of the victim was

neither contrary to, nor an unreasonable application of, clearly established federal

law. A defendant’s right to present a complete defense, “a primary interest secured

by [which] is the right of cross-examination,” is well established. Davis v. Alaska,

415 U.S. 308, 315 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 418

(1965)); see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). However, it

is equally well established that trial courts may exclude evidence pursuant to state

rules of procedure without violating criminal defendants’ constitutional rights. See


                                            2
Van Arsdall, 475 U.S. at 679. Although we may feel differently were this case

presented to us on direct review, we must conclude that the California Court of

Appeal reasonably applied federal constitutional principles in holding that the trial

court’s restriction on defense counsel’s cross-examination of the primary witness,

based on the trial court’s belief that extended questioning was cumulative under the

California Evidence Code, did not infringe Borges’s constitutional rights.

      2.     We also find that the California Court of Appeal’s conclusion that

admitting testimony by the investigating officer that Borges committed the charged

robbery did not violate Borges’s constitutional right to have a jury decide his guilt

was reasonable in light of clearly established federal law. The erroneous

application of a state rule of evidence is not a sufficient basis for granting federal

habeas corpus relief unless the error rendered the trial fundamentally unfair.

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Because the Supreme Court has

never held that a defendant’s right to due process is violated when a witness gives

opinion testimony regarding the fact of the defendant’s guilt, the California Court

of Appeal’s rejection of Borges’s claim cannot have been contrary to, nor an

unreasonable application of, any clearly established Supreme Court law. See 28

U.S.C. § 2254(d)(1).




                                            3
      3.     Borges’s contention that the trial court misapplied state law in

denying his motion for a new trial is not cognizable on federal habeas review. See

Estelle, 502 U.S. at 67 (“[F]ederal habeas corpus relief does not lie for errors of

state law.” (citation omitted)). Nor does the proffered “new” testimony

conclusively prove Borges’s actual innocence, even if such a claim was available

to a non-capital habeas petitioner. See Bousley v. United States, 523 U.S. 614, 623

(1998).

      AFFIRMED.




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