                           NOT FOR PUBLICATION                                 FILED
                    UNITED STATES COURT OF APPEALS                             MAY 19 2020
                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MIGUEL ANTONIO WOOTEN,                          No.   18-16657

                Petitioner-Appellant,           D.C. No. 3:16-cv-03755-VC

 v.
                                                MEMORANDUM *           0F




WARREN L. MONTGOMERY, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                             Submitted May 15, 2020**  1F




                             San Francisco, California

Before: R. NELSON and BRESS, Circuit Judges, and BLOCK,** * District Judge.
                                                                  2F




      Miguel Wooten appeals the district court’s denial of his 28 U.S.C. § 2254

petition as well as the district court’s refusal to expand the record. We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
jurisdiction under 28 U.S.C. § 2253 and affirm.

      We review de novo the district court’s denial of Wooten’s § 2254 petition.

Deck v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2016). The petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which bars relief

unless 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). Where, as here, the claim was raised

only in state habeas proceedings and then summarily denied, we must determine

“what arguments or theories . . . could have supported[] the state court’s decision”

and then decide “whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of [the

Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

      1.     Wooten contends that he received constitutionally ineffective

assistance of counsel when his trial attorney failed to move to suppress Wooten’s

confession to police that he shot William Johnson.           To establish ineffective

assistance of counsel, Wooten must demonstrate both deficient performance and

prejudice under the familiar standard of Strickland v. Washington, 466 U.S. 668, 687

(1984). Under AEDPA, “[a] state court must be granted a deference and latitude

that are not in operation when the case involves review under the Strickland standard

itself,” because “[t]he pivotal question is whether the state court’s application of the


                                           2
Strickland standard was unreasonable.” Richter, 562 U.S. at 101.

      a.     Wooten first argues that his trial counsel was ineffective for failing to

move to suppress his confession as fruit of his illegal arrest for violating former

California Penal Code § 12034 (2009). But the district court declined to issue a

certificate of appealability on this issue, and Wooten did not comply with the

requirements of Ninth Circuit Rule 22-1(e) in seeking to raise the uncertified issue

on appeal. The issue is therefore not properly before us. See 28 U.S.C. § 2253(c).

      Regardless, Wooten’s argument lacks merit and so we decline to issue a

certificate of appealability. As relevant here, California law made it a misdemeanor

for a driver “knowingly to permit any other person to carry into or bring into the

vehicle a firearm” in certain public places. Cal. Penal Code §§ 12034(a) (2009)

(since re-codified at Cal. Penal Code § 26100). Officers observed Wooten allow

another individual, Jarvis Toussaint, into his car, and Wooten was entering the

driver’s seat when officers observed a firearm on Toussaint’s side of the vehicle.

      These observations established probable cause that Wooten committed a

misdemeanor in the officers’ presence. A motion to suppress on the basis of an

unlawful arrest was thus unlikely to succeed, and a state court could reasonably

determine that Wooten’s counsel did not render deficient performance by failing to

file a meritless motion. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

      b.     Wooten next challenges his attorney’s failure to move to suppress his


                                          3
confession on the grounds that it was obtained after police unreasonably delayed

Wooten’s probable cause determination. See Cty. of Riverside v. McLaughlin, 500

U.S. 44, 56 (1992) (holding that the Fourth Amendment prohibits delaying a

probable cause hearing “for the purpose of gathering additional evidence to justify

the arrest”). Wooten argues that police obtained his confession by unlawfully

delaying his probable cause hearing on the weapon charge in order to question him

about a different crime (Johnson’s murder), so his confession would have been

suppressed if his counsel had filed the appropriate motion.

      Even assuming deficient performance, a state court could reasonably conclude

that Wooten was not prejudiced by his counsel’s failure to file a motion under

McLaughlin, because suppression was unlikely. In Powell v. Nevada, 511 U.S. 79

(1994), the Supreme Court left open whether suppression is an appropriate remedy

for a McLaughlin violation. See id. at 85 n.*. And the Supreme Court has held that

under AEDPA, “[i]t is not an unreasonable application of clearly established Federal

law for a state court to decline to apply a specific legal rule that has not been squarely

established by [the Supreme] Court.” Richter, 562 U.S. at 101 (quotations omitted).

      Wooten’s reliance on People v. Jenkins, 19 Cal. Rptr. 3d 386 (Ct. App. 2004),

does not demonstrate prejudice under AEDPA. Even assuming this state case is

relevant to our analysis under AEDPA, Jenkins suppressed inculpatory statements

after the defendant was arrested for one crime but questioned “about another crime


                                            4
for which there was no probable cause to arrest him.” Id. at 394.

      Here, we agree with the district court that a reasonable jurist could conclude

there was probable cause to arrest Wooten for murder based on Toussaint informing

police that Wooten shot Johnson, where Toussaint’s account was corroborated by

the fact that he and Wooten were later arrested for unlawfully carrying a firearm

while traveling together in the same car. Because a reasonable jurist could determine

there was probable cause to arrest Wooten for Johnson’s murder, a reasonable jurist

could distinguish this case from Jenkins and conclude suppression was unwarranted.

      A reasonable jurist could also find suppression unwarranted under Jenkins

because Jenkins held suppression is required only when the statement “was not

sufficiently an act of free will to purge the primary taint of the unlawful invasion.”

19 Cal. Rptr. 3d at 400 (quotations omitted). Especially with the AEDPA overlay,

a reasonable jurist could conclude that Wooten’s confession was sufficiently

voluntary under Jenkins. Among other things, Wooten was properly Mirandized and

chose to speak with police without a lawyer. Sgt. Jones also sought and obtained a

court order removing him from jail to an interview room before questioning him.

Taking these and other factors in the record together, suppression was not beyond

fair-minded disagreement. Richter, 562 U.S. at 102.

      2.     Lastly, Wooten argues that the district court improperly denied his

request to expand the record to include a description of Johnson’s killer given by


                                          5
Antione Knox, a witness to the shooting. We review the district court’s refusal to

expand the record for abuse of discretion. Djerf v. Ryan, 931 F.3d 870, 884 (9th Cir.

2019).

      Wooten’s request is foreclosed by Cullen v. Pinholster, 563 U.S. 170 (2011),

which held that “review under § 2254(d)(1) is limited to the record that was before

the state court that adjudicated the claim on the merits.” Id. at 181. Wooten’s

underlying claim is reviewed under § 2254(d)(1) and the information Wooten seeks

to introduce was not before the state courts. Regardless, and particularly under

AEDPA, Wooten has not demonstrated that Knox’s description would have defeated

probable cause and thereby supported his Strickland claim.

      We have carefully reviewed Wooten’s remaining arguments and conclude

they are without merit.

      AFFIRMED.




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