                                                                               FILED
                              *
                                  NOT FOR PUBLICATION                           NOV 08 2012

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




                              FOR THE NINTH CIRCUIT



PETER JOSEPH REED,                                  No. 10-55749

                Petitioner - Appellant,             D.C. No. 2:09-cv-03152-PA-DTB

    v.
                                                    MEMORANDUM *
MICHAEL CATE,

                Respondent - Appellee.



                      Appeal from the United States District Court
                         for the Central District of California
                       Percy Anderson, District Judge, Presiding

                        Argued and Submitted October 11, 2012
                                 Pasadena, California

Before: EBEL **, WARDLAW, and NGUYEN, Circuit Judges.

         Peter Joseph Reed appeals the district court’s denial of his petition for

habeas relief from his California state court conviction of voluntary manslaughter.

We issued a certificate of appealability with respect to “whether the state violated


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
               The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
[Reed’s] right to due process by suppressing or failing to preserve firearm and/or

ammunition evidence.” See 28 U.S.C. § 2253(c)(3); Arizona v. Youngblood, 488

U.S. 51 (1988); Brady v. Maryland, 373 U.S. 83 (1963). We have jurisdiction

under 28 U.S.C. § 2253(a), and we affirm.

      Before trial, Reed moved to dismiss the charges against him on the ground

that the state violated his right to due process when an investigating officer

purchased ammunition evidence from the decedent’s wife and then lost or disposed

of it. Reed argued that the material was potentially exculpatory because testing

could have shown that the victim’s bullets matched those used in the shooting,

bolstering Reed’s self-defense theory. The state trial court held an evidentiary

hearing and found that although the officer failed to preserve the material, he did

not do so in bad faith as required to succeed on a failure-to-preserve due process

claim under Youngblood. See 488 U.S. at 58. However, as a curative sanction, the

trial court allowed the defense to present evidence that the victim owned

ammunition of the same caliber used in the shooting and barred the officer from

testifying that the lost ammunition was of a different brand than the spent

ammunition found at the scene.

      In affirming the trial court, the California Court of Appeal did not apply

Youngblood in an objectively unreasonable manner. See 28 U.S.C. § 2254(d)(1).


                                     Page 2 of 4
It appropriately inquired whether the record demonstrated that the officer acted in

bad faith. Nor was the Court of Appeal’s decision based on an unreasonable

determination of fact. See 28 U.S.C. § 2254(d)(2). The Court of Appeal’s

conclusion that while the officer “exercised bad judgment, . . . [there was]

sufficient evidence to support the trial court’s conclusion that [he] did not act in

bad faith” was reasonably based on the evidentiary record. See Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004). The aspects of the record that the Court of

Appeal relied on—the fact that the officer did not initiate the transaction; that he

was motivated by a desire to help the widow financially; that the money was not

conditioned on an expectation that she would testify in a certain way; and that he

gave her a receipt, belying an intent to conceal the transaction—sufficiently

support the state court’s determination that the officer did not act in bad faith.

      The California Court of Appeal also reasonably concluded that the missing

evidence would not have exonerated Reed and that the evidentiary sanction the

trial court imposed ensured Reed a fair trial. Although Reed was charged with first

and second degree murder, he was acquitted of those charges and convicted of the

lesser included offense of voluntary manslaughter, despite evidence that he shot the

decedent multiple times. Thus, Reed has not presented sufficient evidence of




                                      Page 3 of 4
prejudice to warrant relief. See Fry v. Pliler, 551 U.S. 112 (2007); Brecht v.

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

       We acknowledge that the officer in question departed from department

procedure in obtaining the evidence, and that his conduct and explanatory

statements were questionable. However, we cannot say that the California Court of

Appeal was objectively unreasonable in determining that the evidence

demonstrated the officer acted with bad judgment and not in bad faith. See Rice v.

Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record

might disagree . . ., but on habeas review that does not suffice to supersede” the

state court’s decision.).

       AFFIRMED.




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