                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 13 2015

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



                            FOR THE NINTH CIRCUIT


STEVEN ALLEN JONES,                               No. 12-17825

              Petitioner - Appellant,             D.C. No. 2:10-cv-00196-MCE-
                                                  TJB
  v.

ERIC ARNOLD, Acting Warden and                    MEMORANDUM*
PEOPLE OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                     Argued and Submitted September 10, 2014
                             San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Steven Allen Jones appeals the district court’s denial of his federal habeas

petition. The district court granted a certificate of appealability on Jones’s claim




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that his due process rights were violated when he was convicted on the basis of

uncorroborated accomplice testimony.

      The district court did not err in denying Jones’s due process claim. Jones

argues that his due process rights were violated because he was arbitrarily deprived

of his state law rights under section 1111 of the California Penal Code, which

provides that a defendant cannot be convicted based on accomplice testimony

unless the testimony is sufficiently corroborated. This argument fails, because the

California Court of Appeal found that the accomplice testimony was sufficiently

corroborated under state law, and this court may not consider any question of state

substantive law. Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Jones does not

argue that there is a federal right to corroboration; rather, his constitutional claim

depends entirely on the assertion that there was not sufficient evidence to satisfy the

California statute. Because the state court considered Jones’s section 1111 claim

and found sufficient corroboration of the accomplice testimony, Jones was not

arbitrarily deprived of a state law entitlement in violation of his Fourteenth

Amendment due process rights. See Laboa v. Calderon, 224 F.3d 972, 979 (9th

Cir. 2000).

      Jones also asks us to expand the certificate of appealability to include four

additional claims. Because Jones has not “made a substantial showing of the denial


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of a constitutional right” on any of these claims, we deny Jones’s motion to expand

his certificate of appealability. See 28 U.S.C. § 2253(c)(2); see also Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003).

      AFFIRMED.




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                                                                                FILED
Jones v. Arnold, No. 12-17825                                                    FEB 13 2015

                                                                             MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, concurring in the result.                               U.S. COURT OF APPEALS




      I concur in the result reached by the majority, but write separately because

the majority fails to comply with AEDPA in resolving Jones’s due process claim.

      In his direct appeal before the California Court of Appeal, Jones raised two

claims: first, that he had been convicted on the basis of uncorroborated accomplice

testimony in violation of section 1111 of the California Penal Code; and second,

that this error of state law arbitrarily deprived him of a state created liberty interest

in violation of his Fourteenth Amendment right to due process. The California

Court of Appeal held that there was no error of state law because there was

sufficient evidence at trial to corroborate the testimony of the accomplice. It did

not address Jones’s due process argument. On federal habeas review, Jones argues

only that the state court erred in rejecting his due process claim.

      Under AEDPA, we must determine whether the California Court of

Appeal’s rejection of Jones’s federal due process claim 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).

Although the state court did not address this federal claim, we presume that the

state court adjudicated it on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1096
(2013). The parties do not dispute this conclusion.

      When a habeas petitioner bases his federal due process claim on an error of

state law at trial, AEDPA requires us to defer to the state court’s rejection of that

claim if the state court could reasonably conclude that the defendant received a

fundamentally fair trial. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011); see

also Rivera v. Illinois, 556 U.S. 148, 162 (2009). Under clearly established

Supreme Court precedent, that is all that due process requires in this context.

Rivera, 556 U.S. at 162. Here, the state court could reasonably determine Jones

received a fundamentally fair trial, and therefore its rejection of Jones’s due

process claim is not contrary to or an unreasonable application of Hicks v.

Oklahoma, 447 U.S. 343 (1980), or any other Supreme Court opinion cited by

Jones. Therefore, I would affirm the district court.

      Instead of applying AEDPA, the majority reaches the merits of Jones’s

Fourteenth Amendment due process claim. Maj. Disp. at 2. It first holds that there

was no breach of section 1111 of the California Penal Code at trial (because the

state court expressly held as much) and then concludes de novo that Jones was

therefore not deprived of his constitutional due process rights. Maj. Disp. at 2.

This is incorrect: instead of reaching the merits, the majority should have deferred

to the state court’s presumed rejection of Jones’s due process claim under AEDPA.

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See Johnson, 133 S. Ct. at 1096; see also 28 U.S.C. § 2254(d). Laboa v. Calderon,

on which the majority relies, is not to the contrary. 224 F.3d 972 (9th Cir. 2000).

There we merely held that because accomplice testimony adduced at trial was

sufficiently corroborated, the erroneous admission of hearsay testimony did not

have a “substantial and injurious” effect on the jury’s verdict. Id. at 979.

      For that reason, I concur only in the result.




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