                                                                              FILED
                            NOT FOR PUBLICATION                                MAR 15 2012

                                                                          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 GRAVES,

              Petitioner-Appellant,                No. 09-16389

  v.                                               D.C. No. 3:01-cv-03502-SI

GARY SWARTHOUT, Acting Warden,                     MEMORANDUM *

              Respondent-Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                      Argued and Submitted February 17, 2011
                             San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and ADELMAN, District
Judge.**

       David Michael Graves appeals from a judgment of the district court denying his

two petitions for writs of habeas corpus under 28 U.S.C. § 2254. This court granted

a certificate of appealability on three issues arising out of one of those petitions: (1)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
whether the prosecutor distorted the judicial fact-finding process by denying immunity

to defense witness John Hinkley and/or threatening him with prosecution, thereby

violating Graves’s due process rights; (2) whether the trial court’s failure to make an

adequate inquiry into Hinkley’s invocation of his Fifth Amendment privilege against

self-incrimination violated Graves’s due process and Sixth Amendment rights; and (3)

whether the district court abused its discretion by denying an evidentiary hearing on

these claims. We affirm.1

                                          I.

      The state courts addressed Graves’s claim that the prosecutor should have

granted Hinkley immunity on the merits. Therefore, our review is governed by

§ 2254(d), and we may grant habeas relief only 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).

      Graves’s claim that the prosecutor committed misconduct by failing to grant

Hinkley immunity is based almost entirely on Ninth Circuit caselaw holding that a



      1
       We also decline to expand the certificate of appealability to include the
uncertified issue raised in Graves’s opening brief.

                                          2
prosecutor commits misconduct (and deprives the defendant of due process) when he

or she refuses to grant a defense witness use immunity with the deliberate intention

of distorting the fact-finding process. See, e.g., Williams v. Woodford, 384 F.3d 567,

600 (9th Cir. 2004). Under the Ninth Circuit’s approach, the defendant must show

that “the prosecution intentionally caused a defense witness to invoke the Fifth

Amendment right against self-incrimination, or that the prosecution granted immunity

to a government witness in order to obtain that witness's testimony, but denied

immunity to a defense witness whose testimony would have directly contradicted that

of the government witness.”       Id.   However, there is no Supreme Court case

recognizing this form of prosecutorial misconduct.         Although Graves points to

Supreme Court cases recognizing that other forms of prosecutorial misconduct can

amount to a deprivation of the defendant’s right to due process and a fair trial, see,

e.g., Darden v. Wainwright, 477 U.S. 168 (1986); Smith v. Phillips, 455 U.S. 209

(1981); Brady v. Maryland, 373 U.S. 83 (1963), the cited cases involve nothing

similar to the alleged misconduct that occurred at Graves’s trial, and the California

courts did not unreasonably fail to extend the rationale of those cases to Graves’s case.

The state court’s refusal to grant relief on this claim was thus not contrary to, and did

not involve an unreasonable application of, clearly established Supreme Court law.




                                           3
      Graves also argues that the prosecutor went beyond merely refusing to grant

Hinkley immunity and actually threatened him with prosecution if he testified. There

is no Supreme Court caselaw holding that a prosecutor commits misconduct when he

or she threatens a defense witness with prosecution and thereby causes the witness to

either refuse to testify or invoke the Fifth Amendment. However, we will assume for

the sake of argument that the state court would have acted unreasonably if it refused

to extend Webb v. Texas, 409 U.S. 95 (1972), to a case in which the prosecutor made

a threat similar to the threat made by the state trial judge in Webb. Even so, Graves

would not be entitled to habeas relief on this claim because the record presented to the

state court, see 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, __ U.S. __, 131 S. Ct.

1388, 1398 (2011), does not support Graves’s claim that the prosecutor threatened

Hinkley.

      The record before the state court included Hinkley’s 1997 declaration and Gary

Mosbarger’s 2000 declaration. In his 1997 declaration, Hinkley stated that although

he was prepared to testify for Graves, he was informed by his attorney that if he

testified he would be charged with the murder of Gary Tutt. Mosbarger, who was

present when Hinkley signed the 1997 declaration, said in his declaration that Hinkley

said that Hinkley’s attorney said that if Hinkley testified the district attorney would

charge him with Tutt’s murder. However, Hinkley never spoke to the prosecutor, and

all he knows is what his attorney, Ken Dothee, told him. And Hinkley did not say in

                                           4
his declaration that Dothee told him that the prosecutor threatened to prosecute him

if he testified. Moreover, even if Hinkley meant to say in his declaration that Dothee

told him that the prosecutor made a threat, that would be hearsay: Dothee would be

the declarant, and Graves would be trying to use the words that Hinkley put into

Dothee’s mouth in order to prove the truth of the matter asserted—that the prosecutor

told Dothee that he would prosecute Hinkley if he testified.              Mosbarger’s

declaration—which simply repeats what Hinkley says in his declaration in slightly

different words—just adds an extra layer of hearsay to Hinkley’s declaration. This

hearsay testimony did not compel the state court to either conclude that the prosecutor

threatened Hinkley or hold an evidentiary hearing for the purpose of exploring the

matter further. Accordingly, the state court reasonably determined as a factual matter

that the prosecutor did not threaten Hinkley.

                                          II.

      Graves claims that the state courts deprived him of due process and his Sixth

Amendment right to compulsory process by failing to make an adequate inquiry into

Hinkley’s assertion of the Fifth Amendment privilege. We conclude that Graves

procedurally defaulted this claim by failing to raise it in the California Supreme Court

during his direct appeal or in a timely state habeas petition. See Walker v. Martin, __

U.S. __, 131 S. Ct. 1120 (2011).       Although Graves argues that the California

timeliness rule is not an “adequate” state ground for procedural-default purposes,

                                           5
Walker holds that the rule is generally adequate. Id. at 1131 (“we find no inadequacy

in California's timeliness rule generally or as applied in Martin's case”). Graves

argues that this holding applies only to the timeliness rule as it existed in 2002 and

later. But even if that is so (and we doubt that it is), the California Supreme Court

denied Graves’s habeas petition as untimely in 2005. SER 30. Although Graves

asserts that 2000 is the significant date for his case, we find no support for this

assertion in Walker. To the extent that the year 2002 had any significance in Walker,

it was because that was the year in which the California Supreme Court denied

Martin’s habeas petition as untimely. See id. at 1126. The corresponding date in

Graves’s case is 2005, and so the holding in Walker applies here even if that holding

would not apply to petitions that were denied as untimely before 2002.

      Graves argues that he can show cause and prejudice and that therefore we

should set aside his procedural default. In an attempt to show cause, Graves argues

that his appellate counsel was ineffective in not raising the trial court’s failure to

conduct an adequate inquiry into Hinkley’s assertion of the privilege in the California

Supreme Court during his direct appeal. However, Graves had no right to counsel in

the California Supreme Court, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

Ross v. Moffit, 417 U.S. 600, 610 (1974), and so counsel’s failure to raise the claim

there is not cause for setting aside the default, see Murray v. Carrier, 477 U.S. 478,

486–88 (1986). To the extent that Graves is arguing that he received ineffective

                                          6
assistance of counsel in the California Court of Appeal, that claim has itself been

defaulted because it was raised in the state habeas petition that the California Supreme

Court denied as untimely. See SER 20; Edwards v. Carpenter, 529 U.S. 446, 450-54

(2000) (“an ineffective-assistance-of-counsel claim asserted as cause for the

procedural default of another claim can itself be procedurally defaulted”).

      Graves also argues that he is actually innocent of Tutt’s murder, and that

therefore his claim should be heard on the merits in order to avoid a fundamental

miscarriage of justice. For a claim of actual innocence to be credible, the petitioner

must present “new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not presented

at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Graves has none of the above.

Hinkley was not a trustworthy eyewitness because he was not at the scene of the

crime. In any event, Hinkley’s story about Scott Casteel’s supposed confession was

not so compelling that it is more likely than not that any rational juror that heard it

would have found Graves not guilty. See House v. Bell, 547 U.S. 518, 537 (2006).

                                          III.

      The remaining certified issue is whether the district court abused its discretion

by not holding an evidentiary hearing on the other two certified issues. When

§ 2254(d) applies to a federal court’s review of a state court’s decision, the federal

court generally cannot consider evidence that was not before the state court when it

                                           7
rendered its decision. See 28 U.S.C. § 2254(d)(2); Cullen, 131 S. Ct. at 1398. Thus,

unless the state court’s failure to hold an evidentiary hearing resulted in an

unreasonable determination of the facts, the district court could not have held an

evidentiary hearing. In the present case, none of the state court’s decisions was based

on an unreasonable determination of the facts. The only factual issue that is even

remotely colorable is whether the prosecutor threatened Hinkley with prosecution if

he testified. But, as we discussed, Graves presented the state courts with nothing but

Hinkley and Mosbarger’s vague hearsay statements on this issue, and we conclude

that such evidence was not enough to require the state court to hold an evidentiary

hearing. Therefore, the district court did not abuse its discretion.

      AFFIRMED.




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