                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 20 2013

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




                            FOR THE NINTH CIRCUIT



CHARLES L. HALE, Jr.,                            No. 10-56906

              Petitioner - Appellant,            D.C. No. 5:09-cv-00570-DMG-
                                                 VBK
  v.

MATTHEW L. CATE,                                 MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted June 4, 2013
                              Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and GLEASON, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Sharon L. Gleason, District Judge for the United
States District Court for the District of Alaska, sitting by designation.
      Pursuant to a limited certificate of appealability,1 Petitioner-Appellant

Charles L. Hale Jr. appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.

      Our review is governed by the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

AEDPA restricts federal courts from granting the writ of habeas corpus to

petitioners in custody pursuant to a state-court judgment on the merits unless the

defendant can show that the state court’s last reasoned adjudication of the

defendant’s federal claim resulted in a decision that (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “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).




      1
         Hale’s motion to expand the certificate of appealability to include the issue
of whether the cumulative effect of the evidentiary issues raised in this appeal
rendered the trial fundamentally unfair is DENIED. See 9th Cir. R. 22-1(e). No
“jurists of reason could disagree” with the district court’s rejection of the
cumulative effects claim because no error contrary to established federal law
occurred in the admission or exclusion of evidence. See Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).

                                           2
      Following a jury trial, Hale was convicted in state court of kidnaping to

commit rape in violation of California Penal Code § 209(b)(1), making terrorist

threats in violation of California Penal Code § 442, and rape in concert with

another in violation of California Penal Code § 261(a)(2). Hale contends that the

trial court made two key evidentiary errors that violated his constitutional rights.

But “[s]imple errors of state law do not warrant federal habeas relief.” Holley v.

Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Instead, under AEDPA, “even

clearly erroneous” evidentiary errors “that render a trial fundamentally unfair may

not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly

established Federal law,’ as laid out by the Supreme Court.” Id. (quoting 28

U.S.C. § 2254(d)).

      Hale first contends that he was denied his right to a fair trial and to present a

complete defense when the trial court excluded the testimony of his eyewitness-

identification expert. He sought to use this testimony to challenge the validity of

the identifications of him made by the victim and another witness. The California

Court of Appeal concluded that the trial court did not err in excluding this

testimony because (1) lay jurors could appropriately assess the reliability of the

identifications without expert assistance, (2) Hale’s counsel could elicit most

points that the expert would have made through cross-examination of the


                                           3
witnesses, and (3) California case law did not require admission of the expert’s

testimony because the identifications of Hale as the perpetrator were corroborated

by each other and by other evidence. Hale cites to no Supreme Court precedent

establishing a constitutional right to present expert eyewitness-identification

testimony and in Nevada v. Jackson the Supreme Court held that exclusion of

evidence under state law for the purpose of focusing the fact-finder and conserving

judicial resources was appropriate and did not impinge on a defendant’s right to

present a complete defense. No. 12-649, 2013 WL 2371469, at *2–3 (June 3,

2013) (reversing the Ninth Circuit’s grant of habeas corpus relief). The Ninth

Circuit has also stated that “[e]ven if the admission of expert testimony concerning

eyewitness identification is proper under certain circumstances, there is no federal

authority for the proposition that such testimony must be admitted.” United States

v. Langford, 802 F.2d 1176, 1179 (9th Cir. 1986) (internal quotation marks and

alterations omitted); see also Barker v. Fleming, 423 F.3d 1085, 1089 n.1 (9th Cir.

2005) (declining to extend a certificate of appealability); Jordan v. Ducharme, 983

F.2d 933, 938–39 (9th Cir. 1993) (affirming denial of habeas petition).

      Hale next contends that the admission of a gang expert’s testimony

describing “a horrific gang rape and sodomy of a deaf girl committed by other

gang members violated [his] constitutional rights to a fair trial.” But the California


                                           4
Court of Appeal’s decision, which found relevant the description of the deaf girl’s

rape, is not inconsistent with federal law as established by the United States

Supreme Court, and Hale’s argument runs counter to circuit precedent. See Holley

v. Yarborough, 568 F.3d at 1098, 1101; see also Boyd v. Newland, 467 F.3d 1139,

1152 (9th Cir. 2006) (noting that the court may look to circuit case law as

persuasive authority in determining what is clearly established federal law).

      AFFIRMED.




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