                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 31 2013

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




                            FOR THE NINTH CIRCUIT



ISIAC NICHOLAS RENTERIA,                          No. 09-17708

               Petitioner - Appellant,            DC No. 1:08 cv 01209 AWI DLB

  v.
                                                  MEMORANDUM *
BEN CURRY,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Anthony W. Ishii, Senior District Judge, Presiding

                            Submitted January 15, 2013 **
                              San Francisco, California

Before:        TASHIMA, GRABER, and FISHER, Circuit Judges.

       Isiac Nicholas Renteria appeals from the district court’s denial of his petition

for habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253. We review de novo the district court’s denial of a


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
petition for habeas corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.

2000). Under the Antiterrorism and Effective Death Penalty Act of 1996, Renteria

must show that 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,” 28 U.S.C. § 2254(d)(1), before he is entitled

to relief. Because he cannot do so, we affirm.

      1.     Renteria’s right to present a complete defense was not violated when

he was not permitted to introduce evidence of third-party culpability. Although

such evidence must be admitted where it “‘raise[s] a reasonable inference or

presumption as to [the defendant’s] own innocence,’” Holmes v. South Carolina,

547 U.S. 319, 323 (2006), it is well established that a trial judge may exclude

evidence of third-party culpability where that evidence merely “cast[s] a bare

suspicion upon another or raises a conjectural inference as to the commission of

the crime by another.” Id. at 324. Here, the trial court did not base its exclusion of

the evidence of third-party culpability only on the strength of one side’s evidence,

and it was not unreasonable to exclude the evidence that another robbery was

committed in the area after Renteria had been taken into custody.

      2.      Even if we assume that a freestanding actual innocence claim can

provide the basis for habeas relief in some cases, see House v. Bell, 547 U.S. 518,


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554-55 (2006), Renteria’s evidence of actual innocence fails to clear the

“extraordinarily high” threshold, see Herrera v. Collins, 506 U.S. 390, 417 (1993).

Here, the state trial court ordered an evidentiary hearing at which another man,

Robert Mendoza, testified to having committed the crime. The trial judge found

that Mendoza’s testimony lacked credibility and denied Renteria’s motion for a

new trial. There is no basis on which to overturn the state trial court’s credibility

determination, Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1986) (per

curiam), and, thus, no basis to grant habeas relief on this claim.

      3.      The photographic identification procedure was not so impermissibly

suggestive as to provide a basis for habeas relief. “[E]ach case must be considered

on its own facts . . . ,” and convictions based on pretrial photographic identification

will be set aside “only if the photographic identification procedure was so

impermissibly suggestive as to give rise to a very substantial liklihood of

irreparabale misidentification.” Simmons v. United States, 390 U.S. 377, 384

(1968). The standard the state court used to assess the propriety of the

identification procedures was not meaningfully different from the Simmons

standard. Id. Here, the photographic array was, at most only slightly suggestive,

in that the formatting of Renteria’s photo differed from the formatting of the other

five photos. The state court’s determination that the photographic array was not


                                          -3-
impermissibly suggestive was neither contrary to nor an unreasonable application

of federal law as determined by the Supreme Court.

      4.     None of the deficiencies that Renteria alleges with regard to the

performance of his attorney provides a basis for habeas relief. He alleges that his

attorney provided ineffective assistance by failing to let him testify, advising him

against taking a plea bargain, and failing to object to impeachment of Dr. Fraser, a

key defense witness. The trial court properly inquired into each of these

complaints. It rejected Renteria’s argument as to the first two allegations, and it

found that the attorney’s deficient performance with regard to the third was not

prejudicial. There is no basis in the record to reverse any of these determinations

on collateral review; none involved an unreasonable application of federal law as

determined by the Supreme Court. See United States v. Edwards, 897 F.2d 445,

446 (9th Cir. 1990); Strickland v. Washington, 466 U.S. 668, 687 (1984).

      The judgment of the district court is AFFIRMED.




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