                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH HATHORN NUCCIO,                           No. 14-15684

              Petitioner - Appellant,            D.C. No. 2:10-cv-02652-TLN-
                                                 KJN
 v.

M. D. MCDONALD,                                  MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                            Submitted January 6, 2016**
                             San Francisco, California

Before: KOZINSKI, NOONAN, and O’SCANNLAIN, Circuit Judges.

      Joseph Nuccio appeals the denial of his petition for writ of habeas corpus

under 28 U.S.C. § 2254. Nuccio’s petition challenges his first-degree murder

conviction for the death of Jody Zunino on the grounds that the state violated the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Sixth Amendment’s Compulsory Process Clause when it failed to ensure defense

witness Terry Sprinkle’s attendance at trial.

1.     Even assuming Supreme Court precedent clearly establishes the state’s duty

to assist the defense in compelling a witness’s attendance at trial, Nuccio’s

Compulsory Process Clause claim fails because he did not establish that Sprinkle’s

testimony would have been either material or favorable to Nuccio’s defense.

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

       Sprinkle’s statement “that he was going to take his wife to North Dakota and

[nobody would ever] get [them] into court” suggests he would have refused to

testify at Nuccio’s trial pursuant to the Fifth Amendment privilege against self-

incrimination. In addition, the trial court held that it would only allow Sprinkle to

testify about his statement that any blood in the back of his Bronco would have

come from intravenous drug users or his having once slapped a prostitute, and why

he initially denied knowing Zunino. However, these topics were unlikely to

produce material evidence. No blood was ever found in Sprinkle’s Bronco—only

a stain that turned out to be soda. And as noted by the California Court of Appeal,

“the fact [that Sprinkle] slapped a prostitute in the past does little, if anything, to tie

him to this murder.” Similarly, that Sprinkle initially denied knowing Zunino

despite being told that they had attended high school together would have been


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immaterial in light of the overall strength of the prosecution’s case against Nuccio.

Sprinkle’s home and Bronco were searched soon after the murder took place, but

no evidence was ever uncovered. Nuccio’s Blazer’s tire tread marks were

“consistent with” the tread marks found on and around Zunino’s body, while

Sprinkle’s Bronco had tires inconsistent with those found at the crime scene.

Nuccio’s semen—not Sprinkle’s—was found in Zunino’s rectum. The California

Court of Appeal thus reasonably concluded that Sprinkle’s testimony would not

have been material or favorable to the defense such that Nuccio’s claim fails under

28 U.S.C. § 2254(d)(1).

2.    Nuccio’s claim that the California Court of Appeal’s decision was based on

an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2) also fails.

Even assuming the court’s finding that the prosecutor had done “everything he was

supposed to do” to arrest Sprinkle was unreasonable, the court also reasonably

concluded that Sprinkle’s absence did not affect the trial court’s decision. The

court of appeal therefore did not “base” its decision on an unreasonable

determination of fact.

      The judgment of the district court denying Nuccio’s habeas petition is

AFFIRMED.




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