                                                                          FILED
                           NOT FOR PUBLICATION                             DEC 10 2014

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



                            FOR THE NINTH CIRCUIT


GLENN B. SPILLMAN,                               No. 12-15718

              Petitioner - Appellant,            D.C. No. 3:10-cv-04980-CRB

  v.
                                                 MEMORANDUM*
VINCENT CULLEN, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Charles R. Breyer, Senior District Judge, Presiding

                           Submitted December 8, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

       Glenn Barry Spillman appeals the denial by the district court of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and affirm.


        *
             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).
      1. The decision by the California Court of Appeal that the state trial court did

not abuse its discretion in excluding certain evidence offered to show third-party

culpability was not unreasonable. See 28 U.S.C. § 2254(d)(1) (allowing habeas relief

only if 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”). The evidence was excluded under California Evidence Code

§ 352, a neutral evidentiary rule similar to Federal Rule of Evidence 403 that is neither

facially arbitrary nor disproportionate to the purpose it seeks to serve. See Holmes v.

South Carolina, 547 U.S. 319, 324–27 (2006); Mejia v. Garcia, 534 F.3d 1036, 1047

n.5 (9th Cir. 2008). Spillman was not denied the right to a defense because he was

able to present other evidence in support of his third-party culpability defense. See

United States v. Scheffer, 523 U.S. 303, 316 (1998) (rejecting the argument “that the

defendant is denied a fair opportunity to defend himself whenever a state or federal

rule excludes favorable evidence”).

      2. Spillman raised two uncertified issues on appeal. Spillman’s arguments are

“construed as a motion to expand” the certificate of appealability, Ninth Circuit Rule

22-1(e), and this motion is denied.

      AFFIRMED.




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