                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 24 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIAM DYE,                                    No.    16-15841

                Petitioner-Appellant,
                                                D.C. No.
 v.                                             2:12-cv-02201-TLN-EFB

RON BARNES,
                                                MEMORANDUM*
               Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                    Argued and Submitted September 15, 2017
                            San Francisco, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and WHALEY,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
      California state prisoner William Dye appeals the denial of his 28 U.S.C. §

2254 habeas corpus petition challenging his conviction for attempted murder.1

      1. Under the Antiterrorism and Effective Death Penalty Act of 1996, a

district court may only grant habeas relief when a state court’s decision on the

merits was “contrary to, or involved an unreasonable application of, clearly

established federal law,” as determined by the United States Supreme Court, or

was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d);

Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam). When a state court

does not provide an explanation for denying a habeas petition, as is the case here,

“the habeas petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief. Harrington v. Richter, 562 U.S.

86 (2011). This burden requires a showing “that 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.” Id. at 103.

      Petitioner asserts that Christopher Johns, the primary eyewitness, lied in his

testimony before the jury. Even assuming that Johns lied about whether he ever

discussed his pending drug charges in the same conversation as Petitioner’s case,



1
 Appellant’s motion to file a supplemental excerpt of record is hereby
GRANTED.

                                            2
the fact most suggested by the record, it was not unreasonable for the California

state court to have found this harmless in light of the amount of evidence presented

at trial against Petitioner.

       2. The district court also refused to issue a subpoena for a CD recording of a

conversation between Johns and law enforcement in March 2009. Generally, a

habeas petitioner “is not entitled to discovery as a matter of ordinary course.”

Bracy v. Gramley, 520 U.S. 899, 904 (1997). In circumstances “as law and justice

require,” however, the court may “fashion appropriate modes of procedure.” Id.

(quoting Harris v. Nelson, 394 U.S. 286, 299, 300 (1969) (internal quotation marks

omitted)). Further, Rule 6 of the Rules Governing § 2254 Cases provides that a

judge in the exercise of his discretion and for good cause shown may grant

discovery procedures available under the Federal Rules of Civil Procedure. See

also Bracy, 520 U.S. at 904. We find there was no abuse of discretion in the denial

of Petitioner’s request for a subpoena.

       AFFIRMED.




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