                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 12 2014

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



                            FOR THE NINTH CIRCUIT


JESUS RIVAS,                            )      No. 10-56615
                                        )
      Petitioner - Appellant,           )      D.C. No. 2:09-cv-02200-JHN-DTB
                                        )
      v.                                )      MEMORANDUM*
                                        )
MATTHEW L. CATE, Warden,                )
                                        )
      Respondent - Appellee.            )
                                        )

                    Appeal from the United States District Court
                       for the Central District of California
                  Jacqueline H. Nguyen, District Judge, Presiding

                       Argued and Submitted March 4, 2014
                              Pasadena, California

Before: FERNANDEZ and GRABER, Circuit Judges, and ZOUHARY,**
        District Judge.

      Jesus Rivas appeals the district court’s denial of his petition for a writ of

habeas corpus. See 28 U.S.C. § 2254. We affirm.

      Rivas asserts that his rights under the Sixth and Fourteenth Amendments to

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
         The Honorable Jack Zouhary, United States District Judge for the Northern
District of Ohio, sitting by designation.
the United States Constitution were violated when the state courts excluded

evidence regarding Rivas’ post-traumatic stress disorder (PTSD) defense to the

murder and other charges against him. We disagree.

      Rivas first insists that we should apply a balancing test developed by our

court to assess whether the exclusion deprived him of a complete defense. See

Miller v. Stagner, 757 F.2d 988, 994–95 (9th Cir. 1985); see also Perry v. Rushen,

713 F.2d 1447, 1452–53 (9th Cir. 1983). He is wrong.

      We must apply “clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Williams v.

Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). We

must not consider circuit law that seeks to “refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that [the] Court has not

announced.” Marshall v. Rodgers, __ U.S. __, __ ,133 S. Ct. 1446, 1450, 185 L.

Ed. 2d 540 (2013) (per curiam). That precludes the application of circuit

precedents that convert the Court’s “highly generalized” standards into an

“elaborate, multistep test” that the Court has not adopted. Parker v. Matthews, __

U.S. __, __, 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012) (per curiam). Because

of those strictures we have held, in a case where expert witness evidence was

excluded, that Miller is “a creation of circuit law” and “we cannot fault the state

                                           2
appellate court” unless it violates Supreme Court precedent. Moses v. Payne, 555

F.3d 742, 759 (9th Cir. 2009).

      The state courts excluded the mental defense premised on chronic PTSD

because they determined that what was reflected in the expert’s weak report was

unhelpful and did not even indicate how PTSD prevented Rivas from forming the

requisite mental state. California law prohibits a general defense of diminished

capacity. Cal. Penal Code § 28. Without a nexus between the disorder and Rivas’

specific intent, the diagnosis of chronic PTSD and the evidence of what happened

in El Salvador more than twenty years earlier were excludable. Those exclusions

were not similar to the rare instances1 where the Supreme Court has found a

violation of the Constitution after balancing a state’s interest in excluding certain

kinds of evidence against the defendant’s interest in presenting a complete

defense.2 Thus, we cannot say that there was a violation of the Constitution.


      1
        See Nevada v. Jackson, __ U.S. __, __, 133 S. Ct. 1990, 1992, 186 L. Ed.
2d 62 (2013) (per curiam) (“Only rarely have we held that the right to present a
complete defense was violated by the exclusion of defense evidence under a state
rule of evidence.”); see also United States v. Scheffer, 523 U.S. 303, 308–09, 118
S. Ct. 1261, 1264–65, 140 L. Ed. 2d 413 (1998).
      2
       See Holmes v. South Carolina, 547 U.S. 319, 330–31, 126 S. Ct. 1727,
1734–35, 164 L. Ed. 2d 503 (2006); Crane v. Kentucky, 476 U.S. 683, 689–91,
106 S. Ct. 2142, 2146–47, 90 L. Ed. 2d 636 (1986); Chambers v. Mississippi, 410
U.S. 284, 302–03, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973); Washington v.
                                                                    (continued...)

                                           3
Moreover, even if excluding the evidence was error, it was harmless due to the

extensive evidence that Rivas formed malice aforethought. See Brecht v.

Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993);

Moses, 555 F.3d at 760.

      AFFIRMED.




      2
       (...continued)
Texas, 388 U.S. 14, 22–23, 87 S. Ct. 1920, 1925, 18 L. Ed. 2d 1019 (1967); cf.
Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 2714, 97 L. Ed. 2d 37 (1987).

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