                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       AUG 12 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 DIMARIO PICKFORD,                                No.    14-16627

                   Petitioner-Appellant,          D.C. No. 4:13-cv-02686-PJH

   v.
                                                  MEMORANDUM*
 GERALD JANDA,

                   Respondent-Appellee.

                     Appeal from the United States District Court
                       for the Northern District of California
                     Phyllis J. Hamilton, Chief Judge, Presiding

                      Argued and Submitted February 10, 2016
                             San Francisco, California

Before: HAWKINS and MURGUIA, Circuit Judges, and MURPHY,** District
Judge.


        DiMario Pickford appeals the denial of his petition for habeas corpus, in

which he challenges his convictions for first-degree murder and possession of an



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
assault weapon. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

      1. The California Supreme Court’s denial of Pickford’s claim regarding

Tameca Jessie’s criminal history was neither contrary to nor an unreasonable

application of Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the

prosecution to disclose material evidence that is favorable to the defense. Id. at 87.

Evidence is not material if it is not admissible, including for impeachment

purposes. See Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam). Also,

impeachment evidence is not material if it is “merely cumulative” with other forms

of impeachment evidence. United States v. Kohring, 637 F.3d 895, 908 (9th Cir.

2010). Here, the state court could have reasonably concluded that Tameca Jessie’s

convictions for driving under the influence and child desertion, along with her

then-pending charge for property damage and evidence that some of her

convictions may have listed the wrong birth date, were not material under Brady,

because the evidence was likely inadmissible in California because it did not relate

to crimes involving moral turpitude. See People v. Castro, 38 Cal. 3d 301, 306

(1985) (stating the California rule). Moreover, Jessie was impeached at trial by her

prior inconsistent statements, her conviction for embezzlement, the fact that she

was being paid as a witness, and her alcohol consumption. The state court could

reasonably conclude that the evidence of her criminal history was merely

cumulative with this other impeachment evidence. See Kohring, 637 F.3d at 908.


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      2. The California Supreme Court’s denial of Pickford’s claim regarding the

transcript of Tameca Jessie’s police interview was likewise neither contrary to nor

an unreasonable application of Brady. Evidence is not “suppressed” under Brady

where the defendant is “aware of the essential facts enabling him to take advantage

of any exculpatory evidence.” United States v. Shaffer, 789 F.2d 682, 690 (9th Cir.

1986) (citation omitted). Here, Pickford had both the recording and the original

transcript of the interview, so the California Supreme Court could reasonably

conclude that he was aware of the essential facts from which he could take

advantage of the evidence. See Rhoades v. Henry, 638 F.3d 1027, 1039 (9th Cir.

2011) (holding that evidence was not suppressed where the defendant had all the

“salient facts” regarding its existence). The California Supreme Court could also

have found any additional impeachment evidence from the enhanced transcript to

be cumulative. See Kohring, 637 F.3d at 908.

      3. We certified for appeal Pickford’s claim that trial counsel rendered

ineffective assistance by failing to investigate witnesses. Upon review of the

supplemental briefing and record, the California Supreme Court’s denial of this

claim was neither contrary to nor an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984). Pickford failed to exhaust his claim regarding

Tiffany Hines and Marcus Churchwell, because he never presented the state court

with an argument that trial counsel was ineffective for failing to investigate or call


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these witnesses. See Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005)

(“The Arizona appeals court was not required to comb the trial court’s decision to

discover Castillo’s federal constitutional issue.”). And Pickford failed to introduce

sufficient evidence of trial counsel’s performance to show that the performance

was objectively unreasonable. See Burt v. Titlow, 134 S. Ct. 10, 17–18 (2013);

Bragg v. Galaza, 242 F.3d 1082, 1088–90 (9th Cir.) (“[T]he record developed by

Bragg in state court does not give adequate factual support for us to credit his

claims of ineffective assistance of counsel.”), amended by 253 F.3d 1150 (2001).

      4. We also certified for appeal Pickford’s claim that he is actually innocent.

The California Supreme Court’s denial of this claim was neither contrary to nor an

unreasonable application of federal law. Pickford’s new evidence does not meet

the “extraordinarily high” standard of showing “that he is probably innocent.”

Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (internal quotation marks and

citations omitted). And because the California Supreme Court’s denial of this

claim was not unreasonable based on the evidence presented to it, we cannot order

an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011)

(holding that “review under § 2254(d)(1) is limited to the record that was before

the state court that adjudicated the claim on the merits”).

      AFFIRMED.




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