                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 26 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRYAN JOSEPH MINCEY,                             No. 15-56264

              Petitioner - Appellant,            D.C. No. 2:93-cv-02554-PSG

 v.
                                                 MEMORANDUM*
RON DAVIS, Warden of California State
Prison at San Quentin,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted November 7, 2016
                              Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.

      Petitioner-Appellant Bryan Joseph Mincey (Mincey) appeals the district

court’s denial of his habeas claims challenging his conviction. The district court

issued a certificate of appealability for Mincey’s claim challenging the exclusion of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
certain evidence regarding Sandra Brown (Brown), his girlfriend and co-defendant.

We subsequently ordered the state to address uncertified ineffective assistance of

counsel claims.

      Certified Claim

      1.     The trial court properly excluded evidence of Brown’s prior drug use

and child abuse as cumulative. “[W]ell established rules of evidence permit trial

judges to exclude evidence if its probative value is outweighed by certain other

factors such as unfair prejudice, confusion of the issues, or potential to mislead the

jury. See, e.g., Fed. Rule Evid. 403. . .” Holmes v. South Carolina, 547 U.S. 319,

326-37 (2006) (parallel citations omitted); see also Cal. Evid. Code § 352.

      The parties agreed that Brown abused the child victim on the night of the

child’s murder. As a result, the trial court granted the prosecution’s motions in

limine to exclude evidence of Brown’s prior drug use and child abuse. The trial

court noted that, for every witness Mincey presented to demonstrate Brown’s prior

bad acts, the prosecution could present an equal number of witnesses attesting to

Mincey’s prior drug use and child abuse. Courts may limit the number of

witnesses to avoid cumulative evidence. See Holmes, 547 U.S. at 326-27. The

trial judge’s decision to avoid “mini-trials on collateral issues” is consistent with

due process. Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (citation omitted).


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      Uncertified Claims

      Because “jurists of reason could conclude the issues presented are adequate

to deserve encouragement to proceed further,” we expand the certificate of

appealability to include the ineffective assistance of counsel claims discussed

below. Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citation omitted).

      2.     Mincey’s counsel did not render ineffective assistance by calling Dr.

Oliver as a witness to focus on one particular strategy (lack of intent) to the

exclusion of others. Counsel reasonably believed that Dr. Oliver would testify that

Mincey lacked intent to kill the child victim, and made a tactical decision to

challenge the intent element of the charges against Mincey by calling Dr. Oliver as

a witness. “Unlike a later reviewing court, the attorney observed the relevant

proceedings, knew of materials outside the record, and interacted with the client,

with opposing counsel, and with the judge. . . .” Harrington v. Richter, 562 U.S.

86, 105 (2011). We may not second-guess that tactical decision. See id. The

district court’s denial of this claim was not contrary to, or an unreasonable

application of, Strickland v. Washington, 466 U.S. 688 (1984).

      3.     Defense counsel consented to the playing of three unredacted

interviews between Mincey and sheriff’s deputies. The tapes included disparaging

statements made by the deputies accusing Mincey of lying and of sexually abusing


                                     Page 3 of 6
the deceased child. Admission of these unredacted tapes was part of a

comprehensive trial strategy to convey the coercive atmosphere in which Mincey’s

statements were taken. The trial court admonished the jury that the questions from

the deputies were not evidence, and that the deputies lied to Mincey during the

interrogation. Counsel’s tactical election to permit the jury to hear the untrue

statements made by the deputies to impugn the interrogation process negates any

potential ineffective assistance of counsel claim. See Strickland, 466 U.S. at 689

(explaining that “sound trial strategy” falls within the wide range of reasonable

effective assistance). In addition, the trial judge’s “cautionary instructions are

presumed to have cured prejudicial impact.” Velazquez v. City of Long Beach, 793

F.3d 1010, 1028 (9th Cir. 2015) (citation and alterations omitted).

      4.     The coroner testified that in his opinion, the child victim died from

massive blunt injuries and, before death, likely suffered from shock and metabolic

acidosis (an acid buildup in the body). The coroner also conducted a toxicology

test, with no positive results for amphetamines or any other narcotics. Years later,

Dr. Pablo Stewart, a psychiatrist, evaluated the coroner’s testimony and autopsy

reports, and questioned whether the metabolic acidosis was caused by physical

trauma or amphetamine ingestion. “To the extent that this new testimony

contradicts the prosecution’s expert testimony, it’s simply a difference in opinion. .


                                     Page 4 of 6
. .” Gimenez v. Ochoa, 821 F.3d 1136, 1142 (9th Cir. 2016) (citations omitted).

Further, the coroner never isolated metabolic acidosis as the cause of death.

Rather, the coroner noted metabolic acidosis as a complication arising from

massive blunt trauma. Unlike prior Ninth Circuit cases where it was plain that

further investigation would have undermined the government’s case, see Duncan v.

Ornoski, 528 F.3d 1222, 1235-36 (9th Cir. 2008), here counsel could have had

reason to be skeptical of the state toxicology report. Counsel’s strategic decision

to focus his time on other aspects of the case was therefore not “unreasonable

under prevailing professional norms.” Id. at 1235.

        5.   Dr. Stewart’s opinion, without more, did not warrant an evidentiary

hearing. We need not grant an evidentiary hearing if Mincey’s factual allegations,

taken as true, are insufficient to entitle him to relief. See Gonzalez v. Knowles, 515

F.3d 1006, 1014-15 (9th Cir. 2008). Even if Mincey were able to show that Dr.

Stewart’s opinion would have instilled doubt into the mind of a juror at trial, thus

avoiding a guilty verdict, he would not be entitled to relief because he cannot show

that his lawyer’s decision against pursuing that strategy was unreasonable. There

is no “quantum of . . . evidence” that Mincey could reveal at an evidentiary hearing

to undermine his lawyer’s decision, as opposed to the coroner’s conclusion. Id. at

1014.


                                     Page 5 of 6
      Neither was Dr. Stewart’s opinion sufficient to establish that the coroner

testified falsely or that the prosecution presented false testimony. See Napue v.

Illinois, 360 U.S. 264, 269 (1959). “Introducing expert testimony that is

contradicted by other experts, whether at trial or at a later date, doesn't amount to

suborning perjury or falsifying documents; it’s standard litigation. . . .” Gimenez,

821 F.3d at 1143.

      AFFIRMED.




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