                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 26 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DUY PHAM,                                        No. 13-56090

              Petitioner - Appellant,            D.C. No. 3:03-cv-00462-WQH-
                                                 JMA
  v.

L. S. MCEWEN, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                               Pasadena, California

Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.

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

petition. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the denial of

Pham’s habeas petition was neither contrary to, nor an unreasonable application of,

clearly established Supreme Court precedent, and because the district court did not



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse its discretion in denying Pham’s request for discovery, we affirm. 28 U.S.C.

§ 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86 (2011).

      Pham’s prosecutorial misconduct claim is not procedurally barred. Coleman

v. Thompson, 501 U.S. 722, 729-30 (1991). Where a state court denies a habeas

petition containing multiple claims and does not “specify which claims were barred

for which reasons,” the state court has not clearly and expressly relied on an

independent and adequate state ground. Koerner v. Grigas, 328 F.3d 1039, 1050

(9th Cir. 2003) (internal quotation marks omitted). The California Supreme Court

denied Pham’s claims via a string citation to multiple cases, one of which was In re

Waltreus, 62 Cal.2d 218 (1965), without indicating which claim was rejected based

on which cited case. We have held that “[a] Waltreus citation does not bar federal

review.” Calderon v. U.S. Dist. Court for E. Dist. of California, 96 F.3d 1126,

1131 (9th Cir. 1996). Since the California Supreme Court’s decision does not

clearly indicate the basis for the denial of the prosecutorial misconduct claim,

including whether or not the denial of that claim was based on Waltreus, the claim

is not procedurally barred.

      The California Supreme Court’s denial of Pham’s prosecutorial misconduct

claim was neither contrary to nor an unreasonable application of clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d)(1)-(2). To constitute a due process


                                          2
violation, “the prosecutorial misconduct must be of sufficient significance to result

in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 483 U.S. 756,

765 (1987) (internal quotation marks omitted). First, the record does not reflect

that Chuong Dong was permitted to create a false impression with respect to his

views on shooting someone to acquire money. Second, the record does not support

Pham’s contention that Dong lied when he stated that he was not promised any

leniency in exchange for his testimony. Because Pham has not established that any

misrepresentations were made during Dong’s testimony, the California Supreme

Court’s decision denying Pham’s prosecutorial misconduct claim is not contrary to

Supreme Court precedent. Parker v. Matthews, 132 S.Ct. 2148, 2153 (2012).

      Similarly, the denial of Pham’s third claim, in which he alleges

unconstitutional limitations on impeachment evidence and on his right to present a

defense, was neither contrary to nor an unreasonable application of clearly

established Supreme Court precedent. 28 U.S.C. § 2254(d)(1)-(2). A violation of

the Confrontation Clause occurs when a petitioner is not allowed to “engag[e] in

otherwise appropriate cross-examination designed to show . . . bias on the part of

the witness, and thereby to expose to the jury the facts from which jurors . . . could

appropriately draw inferences relating to the reliability of the witness.” Delaware

v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308,


                                           3
318 (1974)). Although the trial court limited certain evidence that may have been

offered to impeach Dong, substantial impeachment evidence was admitted

including, for example, evidence related to Dong’s extensive criminal history.

Furthermore, evidence was admitted at trial in support of Pham’s defense that

Dong, and not Pham, shot Carlos Go. See Taylor v. Illinois, 484 U.S. 400, 407-08

(1988). This included Thanh Hoang Nguyen’s testimony that Dong brought him

the gun used to shoot Go, admitted that it was “dirty,” and implied that he was the

one who had made it so. Because Pham was permitted to present both

impeachment evidence and his defense that someone else shot Go, his

constitutional rights were not violated.

      Finally, the district court did not abuse its discretion in denying Pham’s

request for discovery. Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir. 2010). The

district court correctly concluded that good cause for discovery had not been

shown. Id. at 996; see also Rule 6(a), Rules Governing Section 2254 Cases, 28

U.S.C. foll. § 2254. Pham’s allegation that Dong was allowed unsupervised visits

with Thuy Giang, and that Dong was secretly promised favors in exchange for his

testimony, was based on speculation unsupported by the record. McDaniel v. U.S.

Dist. Court for the Dist. of Nevada, 127 F.3d 886, 888 (9th Cir. 1997).

      AFFIRMED.


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