                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 06 2015

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



                           FOR THE NINTH CIRCUIT


NORMAN EUGENE CLUKE,                             No. 13-56544

              Petitioner - Appellant,            D.C. No. 3:11-cv-01896-CAB-
                                                 NLS
  v.

GARY SWARTHOUT, Warden,                          MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                            Submitted March 4, 2015**
                               Pasadena, California

Before: GOULD and TALLMAN, Circuit Judges, and KORMAN, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Norman E. Cluke appeals the district court’s denial of federal habeas relief.

Cluke argues that the California trial court violated his right to testify under the

Fifth, Sixth, and Fourteenth Amendments because the trial court had a

constitutional obligation to ask Cluke personally whether Cluke wished to testify.

Federal habeas relief may not be granted for claims subject to 28 U.S.C. § 2254(d)

unless petitioner shows: (1) that the state court’s decision “was contrary to” clearly

established Supreme Court law, § 2254(d)(1), Williams v. Taylor, 529 U.S. 362,

412 (2000); or (2) that it “involved an unreasonable application of” such law,

§ 2254(d)(1); or (3) that it “was based on an unreasonable determination of the

facts” in light of the record before the state court, § 2254(d)(2). See, e.g.,

Harrington v. Richter, 562 U.S. 86 (2011). Because Cluke has failed to meet this

high standard, we affirm.

      First, Cluke points to no clearly established Supreme Court law indicating

that a trial court has a constitutional obligation to personally inquire into a

defendant’s desire to testify, instead Cluke relies on distinguishable out-of-circuit

cases. Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (court of appeals erred

by relying “on the mistaken belief that circuit precedent may be used to refine or

sharpen a general principle of Supreme Court jurisprudence into a specific legal

rule that [the Supreme] Court has not announced”).


                                           2
       Second, the California Court of Appeal’s factual finding that Cluke knew he

had the right to testify and chose not to do so was a reasonable determination of the

facts in light of the record showing that (a) after Cluke initially expressed a desire

to testify, the trial court explained in open court his right to testify, (b) the trial

court ruled on the prior convictions it would admit for impeachment purposes to

assist Cluke in deciding whether to testify, (c) the trial court provided Cluke and

his attorney a short recess to reconsider whether Cluke wished to testify in light of

the now admissible impeachment evidence, and (d) that Cluke did not again

mention his desire to testify until after the jury found him guilty. Although Cluke

now alleges he never agreed with the recommendation of his trial counsel, Frank

Puglia, to not testify, the state court credited Puglia’s testimony that Cluke’s nod

during the short recess and the fact that Cluke did not again express a desire to

testify until after the jury verdict, left Puglia with the impression he had convinced

Cluke that testifying was a bad idea. Cluke has failed to offer “clear and

convincing evidence” to overcome the presumption of correctness we must accord

the state court’s factual finding. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan,

550 U.S. 465, 473–74 (2007).

       AFFIRMED.




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