                                                                              FILED
                           NOT FOR PUBLICATION                                 MAR 22 2011

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




                            FOR THE NINTH CIRCUIT



FELIX SOLORIO VALDOVINOS,                        No. 08-15918

             Petitioner - Appellant,             D.C. No. 4:02-CV-01704-CW

  v.
                                                 MEMORANDUM *
JOE MCGRATH,

             Respondent - Appellee.



                On Remand from the United States Supreme Court

Before: B. FLETCHER and KLEINFELD, Circuit Judges, and DUFFY, Senior
District Judge.**

       This memorandum is occasioned by the Supreme Court’s vacatur and

remand of our prior disposition for further consideration in light of Harrington v.

Richter, 131 S. Ct. 770 (2011). Petitioner-Appellant Felix Solorio Valdovinos

appeals the district court’s denial of his amended habeas corpus petition

challenging his jury conviction of first degree murder. He contends that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Kevin Thomas Duffy, Senior District Judge for the
U.S. District Court for Southern New York, New York, sitting by designation.
government withheld potentially exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and that his trial counsel’s performance fell below

the level required under Strickland v. Washington, 466 U.S. 668 (1984). Applying

28 U.S.C. § 2242 deference to the state court’s conclusions, we affirm the district

court’s denial of the petition.

                                           I.

      The facts underlying this appeal are known to the parties and need not be

repeated here. The district court denied habeas relief on March 12, 2008, and

certified two issues for appeal: (1) whether the Brady violations denied Valdovinos

due process; and (2) whether Valdovinos’s trial counsel provided ineffective

assistance by failing to object to the prosecution’s introduction of Lopez’s out-of-

court statements.1 In addition, the state appeals the district court’s decision to

allow Valdovinos to amend his habeas petition.2 We have jurisdiction under 28

U.S.C. § 2253.

                                           II.




      1
      Valdovinos raises an uncertified issue in his opening brief. We decline to
expand the scope of the COA to include the uncertified issue.
      2
       The state is not required to obtain a COA before raising an issue on appeal.
Fed. R. App. P. 22(b)(3).

                                           2
      We first determine whether the district court erred in staying Valdovinos’s

petition while he exhausted additional claims in state court and in allowing

Valdovinos to amend his habeas petition. We review for abuse of discretion a

district court’s stay and abeyance of a mixed petition containing both exhausted

and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 279 (2005). We also

review for abuse of discretion a district court’s decision to allow a habeas

petitioner to amend his petition. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th

Cir. 2008).

      In granting the stay and abeyance of Valdivinos’s petition, the district court

emphasized that Valdovinos had not engaged in dilatory tactics and had no

motivation for delay, as he is not a capital defendant. The court also noted that

Valdovinos did not bear the blame for omitting the additional evidence rendering

his claims unexhausted because he had no knowledge of it due to the misconduct

of the prosecution. We hold that the district court did not abuse its discretion in

granting the stay in accordance with this reasoning. See Rhines v. Weber, 544 U.S.

269, 278 (2005) (opining that a district court would likely abuse its discretion in

denying such a stay where “the petitioner had good cause for his failure to exhaust,

his unexhausted claims are potentially meritorious, and there is no indication that

the petitioner engaged in intentionally dilatory tactics”).


                                           3
      Untimely amendments to an original habeas petition are permissible of they

arise “from the same core facts as the timely filed claim” so that they relate back to

the original, timely petition. Mayle v. Felix, 545 U.S. 644, 657 (2005). The

district court concluded that Valdovinos’s revised Brady claim related back to the

Brady claim in the original petition and that the amended ineffective assistance of

counsel claim arose from the same conduct, transaction, or occurrence as set forth

in the original pleading. We agree. We therefore hold that the district court did

not abuse its discretion in permitting amendment of the original habeas petition to

add newly discovered evidence supporting both the Brady and the ineffective

assistance of counsel claims.

                                          III.

      In accordance with the standard set forth in AEDPA, a court may grant a

writ of habeas corpus only if the state court’s ruling:

     (1) resulted 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; or (2) resulted
     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). “The question under AEDPA is not whether a federal court

believes the state court’s determination was incorrect but whether that

determination was unreasonable – a substantially higher threshold.” Schriro v.


                                           4
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410

(2000)).

      In the event that the state court issues a summary denial of the habeas

petition, the petitioner must still meet his burden by showing there was no

reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S. Ct.

770, 784–85 (2011). We therefore apply § 2254(d) deference to the state court’s

summary denial of Valdivinos’s petition for habeas relief.

                                          A.

      We first turn to the substance of Valdovino’s Brady claim. A Brady claim is

composed of three necessary elements: “(1) [t]he evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching, (2) that evidence must have been suppressed by the State, and (3)

prejudice must have ensued.” Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir.

2008) (quotations and citation omitted). “To determine whether prejudice exists,

we look to the materiality of the suppressed evidence.” Id.

      Here, the suppressed evidence includes the undisclosed photo lineups, the

Lopez impeachment information, the anonymous letter, and the photograph of

Mongia. The cumulative effect of the suppressed evidence leads us to conclude




                                           5
that Valdivinos did not receive a fair trial resulting in a verdict worthy of a

confidence, that is, that the government committed a Brady violation.

      Our review of the state court’s unexplained denial of the petition, however,

is limited by § 2242(d). Thus, we grant the petition only if “the state court’s ruling

on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.

Although we disagree with the state court’s ruling, we cannot conclude that it

lacked any reasonable basis to deny relief. The state court could have concluded

that the withheld exculpatory evidence did not cast doubt on the outcome of the

trial because the evidence pointing to Valdovinos’s guilt — the eyewitness’

testimony, the similarities between his car and the shooter’s car, and the fact that

he fled the state immediately after the shooting — was sufficiently strong. That

the district court agreed with the state court that no Brady violation occurred

provides further indication that fairminded jurists can and do disagree as to the

merits of this claim. Therefore, despite our conclusion that Valdovinos’s Brady

rights were violated, we cannot hold that he is entitled to habeas relief.

                                           B.




                                           6
      We now turn to the substance of the ineffective assistance of counsel claim.

To prevail on an ineffective assistance of counsel claim, a petitioner must

establish: (1) that counsel's performance was deficient, that is, that it fell below an

objective standard of reasonableness; and (2) that he was prejudiced by the

performance, that is, that "there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984).

      Valdovinos claims his trial counsel provided ineffective assistance by failing

to object to pre-trial statements that Lopez made to investigating police, which the

prosecution introduced through the testimony of Sergeant Ramirez. The state court

concluded that counsel’s failure to object to Lopez’s out-of-court statement did not

prejudice Valdivinos. Because we agree with the district court that Lopez’s

testimony was internally contradictory and did not strongly incriminate Valdivinos,

we conclude that the state court’s rejection of this claim was reasonable.

                                          IV.

      Because the state court’s ruling on Valdivino’s petition was not “so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement,” he is not entitled

to habeas relief. Harrington, 131 S. Ct. at 786–87.


                                            7
AFFIRMED.




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