                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 13 2010

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




                            FOR THE NINTH CIRCUIT



DAVID MICHAEL LEON,                              No. 09-15897

             Petitioner - Appellant,             D.C. No. 3:07-cv-05719-CRB

  v.
                                                 MEMORANDUM *
JAMES A. YATES, Warden, Pleasant
Valley State Prison; JAMES E. TILTON,
Director, CDOC,

             Respondents - Appellees,




                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                             Submitted May 11, 2010 **
                              San Francisco, California




        *
             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).
Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***

      David Leon appeals from the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We review de novo the district court’s decision to deny a

habeas petition and review its factual findings for clear error. McMurtrey v. Ryan,

539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), federal habeas may only be granted if the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or “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). The

standard of review is “highly deferential . . . [and] demands that state court

decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19,

24 (2002) (per curiam) (internal quotation marks omitted).

      Leon was not denied his rights to due process or a fair trial or to present a

defense when the trial court excluded evidence of third-party culpability. The

evidence Leon wanted to present was extraordinarily vague and tenuous, and its

exclusion was therefore not contrary to nor an unreasonable application of federal


        ***
             The Honorable Patricia C. Fawsett, United States Senior District
Judge for the Middle District of Florida, sitting by designation.

                                           2
law. The “slow nod” evidence is not probative, especially considering that

William Wall later said he was not sure if Blaine Buscher knew he was referring to

the murder victim, nor if Buscher’s nod indicated his responsibility for the murder.

The other evidence about a man with a green army jacket was also too attenuated

to be probative.

      The dismissal of Juror No. 6 during deliberation for not being truthful during

voir dire did not violate Leon’s constitutional rights. Under the AEDPA, unless

Leon can prove otherwise by clear and convincing evidence, the trial judge’s

factual findings as to the bases for the dismissal are entitled to a presumption of

correctness. We agree with the district court that Leon cannot clear this hurdle,

especially in light of the other jurors’ testimony indicating Juror No. 6’s strong

bias and his answers to the voir dire questions in which he affirmed that he had no

bias for or against police officers.

      To demonstrate ineffective assistance of appellate counsel, Leon must show

that counsel’s representation was objectively unreasonable and that this deficient

performance prejudiced him in his appeal. Strickland v. Washington, 466 U.S.

668, 687 (1984). Leon did not demonstrate that his appellate counsel’s conduct

was objectively unreasonable, or that he was prejudiced by his counsel’s conduct.

The strategy was not objectively unreasonable because People v. Son, 79 Cal. App.


                                           3
4th 224, 240-241 (Cal. Ct. App. 2000), precludes the argument that the trial court

should have admitted the testimony; there were other issues that were stronger, and

winnowing out weaker arguments is a hallmark of effective appellate advocacy;

appellate counsel’s review of the tape of the testimony led her to conclude that the

statement was not coerced; and the expert testimony only went to the weight of the

evidence, not admission of the evidence, and the allegedly coerced statement was

later recanted by the witness. In any event, Leon was not prejudiced by his

counsel, as evidence of Leon’s guilt was substantial and the reliability of his

father’s testimony was thoroughly challenged at trial by counsel.

      Although the district court did not certify Leon’s final question, we certify

the question and hold that Leon was not denied due process and his right to

juvenile adjudication by a 17-year pre-accusation delay. He demonstrated no

actual prejudice resulting from the delay. All of the allegedly lost evidence and

testimony was purely speculative and not critical to his defense. Despite the delay,

the trial court conducted a fitness hearing, and found Leon unfit to be tried as a

juvenile. Given that the murder occurred only one week before Leon’s eighteenth

birthday, and that the presumption in murder cases is that a minor will be unfit for

juvenile adjudication, the state court’s conclusion was not contrary to nor an

unreasonable application of federal law.


                                           4
AFFIRMED.




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