                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAY 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LARRY D LUGO,                                   No.    16-55990

                Petitioner-Appellant,           D.C. No.
                                                5:14-cv-02572-JFW-RAO
 v.

SHAWN HATTON, Warden,                           MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                             Submitted May 8, 2020**
                               Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and HUMETEWA,*** District
Judge.

      Petitioner Larry Lugo appeals the district court’s dismissal of his petition for

habeas corpus. Lugo contends that the California Court of Appeal erred in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
excluding evidence of third-party culpability. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253(c). As the parties are familiar with the facts, we do not

recount them here. We affirm.

      The California Court of Appeal’s dismissal of Lugo’s petition constituted an

“adjudicat[ion] on the merits” under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), because there is no “indication or

state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S.

86, 99 (2011) (citation omitted). Trial judges are permitted, under the

Constitution, to exercise their discretion and exclude evidence of third-party

culpability if they find its probative value to be outweighed by factors such as

unfair prejudice. See Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006).

      While the California Court of Appeal was silent on Lugo’s due process

claims, by addressing the discretion of the trial judge in evaluating the evidence,

we can presume that the California Court of Appeal also considered that issue

under the broader umbrella of a criminal defendant’s constitutional right to present

a defense. See Johnson v. Williams, 568 U.S. 289, 301 (2013); see also People v.

Hall, 718 P.2d 99, 104 (1986) (“As a general matter, the ordinary rules of evidence

do not impermissibly infringe on the accused’s right to present a defense.”). Due

to its adjudication on the merits, the California Court of Appeal’s dismissal

warrants AEDPA deference. See Renico v. Lett, 559 U.S. 766, 773 (2010).


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      The California Court of Appeal’s adjudication did not result “in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). While a criminal defendant has a constitutional right to present a

defense, that right is subject to certain limitations such as procedural or evidentiary

rules. See Holmes, 547 U.S. at 326-27. California Evidence Code Section 352, the

state equivalent to Federal Rule of Evidence Section 403, is one such rule that

shapes the scope of a defendant’s right to present a defense by allowing the

exclusion of evidence that is unfairly prejudicial, including evidence of third-party

culpability that is “purely speculative.” Spivey v. Rocha, 194 F.3d 971, 978 (9th

Cir. 1999); see Fowler v. Sacramento Cty. Sheriff’s Dept., 421 F.3d 1027, 1033 n.4

(9th Cir. 2005). Here, the California Court of Appeal identified and analyzed the

appropriate evidentiary rules, ultimately determining that any connection between

Nino Garcia’s death and Lugo’s guilt was pure speculation and insufficient to raise

a reasonable doubt as to Lugo’s guilt. The California Court of Appeal admitted

other evidence of third-party culpability that was not unfairly prejudicial, thus

indicating a reasoned consideration of the facts and applicable law.

      The California Court of Appeal adjudication did not result “in a decision that

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). As a general


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principle, we “must presume that a state court’s factual findings are correct,” and it

is the petitioner who “has the burden of rebutting the presumption by clear and

convincing evidence.” McDaniels v. Kirkland, 839 F.3d 806, 809 (9th Cir. 2016)

(internal quotations marks and citation omitted). We will only second-guess a state

court’s determination of the facts if the state court was “actually unreasonable,”

and “not merely wrong.” Sifuentes v. Brazelton, 825 F.3d 506, 517 (9th Cir. 2016)

(internal quotation marks and citation omitted). Here, the California Court of

Appeal weighed the evidence, excluding only that which was more prejudicial than

probative. Lugo merely disagrees with the California Court of Appeal’s

interpretation of the facts, and he has failed to carry his burden by clear and

convincing evidence. See McDaniels, 839 F.3d at 809.

      Lugo raises an uncertified claim in his opening brief, which we construe as a

motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e); 28

U.S.C. § 2253(c)(2); Gonzalez v. Duncan, 551 F.3d 875, 879 n.6 (9th Cir. 2008).

We deny the motion.

      AFFIRMED.




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