                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                                JUN 16 2014

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

RICHARD QUILOPRAS,                                No. 10-15240

              Petitioner - Appellant,             D.C. No. 5:05-cv-04516-JW

  v.
                                                  MEMORANDUM*
JAMES A. YATES, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                        Argued and Submitted June 10, 2014
                             San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

       Richard Quilopras appeals the district court’s denial of his petition for a writ

of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The California Court of Appeal determined that the trial court did not violate

double jeopardy principles when it declined to apply collateral estoppel to bar

Quilopras’s prosecution. This determination was not contrary to or an unreasonable

application of clearly established Supreme Court precedent. 28 U.S.C. §

2254(d)(1). Because the two trials did not involve the same defendant, Ashe v.

Swenson, 397 U.S. 436 (1970), did not control. What is more, the Supreme Court

has rejected the application of nonmutual collateral estoppel in criminal cases.

Standefer v. United States, 447 U.S. 10 (1980).

      The California Court of Appeal determined that the exclusion of evidence

regarding James Murphy’s acquittal did not deprive Quilopras of his right to

confront witnesses or present a complete defense. This determination was not

contrary to or an unreasonable application of clearly established Supreme Court

precedent. 28 U.S.C. § 2254(d)(1). Unlike the evidence at issue in Crane v.

Kentucky, 476 U.S. 683 (1986), and Delaware v. Van Arsdall, 475 U.S. 673

(1986), which would have helped the jury evaluate the credibility of a witness,

evidence of Murphy’s acquittal would not have helped the jury evaluate Dennis

Agan’s credibility. The trial court relied on well-established state evidentiary rules

to exclude this evidence. Moses v. Payne, 555 F.3d 742, 757–59 (9th Cir. 2009).




                                          2
      The State argues that Quilopras has failed to exhaust his new ineffective

assistance of counsel (“IAC”) claim. But AEDPA requires a petitioner to exhaust

only “remedies still available at the time of the federal petition.” Franklin v.

Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002) (internal quotation marks omitted).

Quilopras cannot return to state court to raise his new IAC claim because it would

be time-barred. In re Clark, 855 P.2d 729, 760 (Cal. 1993). As a result, the new

IAC claim is exhausted. Franklin, 290 F.3d at 1231. Because the State did not raise

the issue of procedural default before the district court, it has forfeited the issue

here. Id. at 1229–31. We therefore review this claim de novo. Scott v. Ryan, 686

F.3d 1130, 1133 (9th Cir. 2012) (per curiam), cert. denied, 134 S. Ct. 120 (2013).

      Quilopras can show neither deficient performance nor prejudice. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Quilopras had at his disposal all of the

evidence bearing on credibility that was before the jury that acquitted Murphy. The

trial court’s ruling merely prevented Quilopras’s lawyer from arguing to the jury

that a different jury in a different proceeding may have reached a certain

conclusion on a shared issue. The trial court’s ruling did not impede effective

assistance of counsel. Accordingly, the district court properly rejected Quilopras’s

new IAC claim.




                                            3
      The California Court of Appeal decided that the admission of Agan’s

testimony did not violate Quilopras’s due process rights. The court found that

nothing in the record suggested that Agan had been coerced to do anything but tell

the truth. In addition, the court found that the evolution in Agan’s story was

attributable to the length of time between the murder and the resolution of the

crime, Agan’s history of substance abuse, and the fact that Agan likely felt freer to

admit the extent of his own involvement only after securing the plea bargain. This

determination of the facts was not unreasonable in light of the evidence presented,

28 U.S.C. § 2254(d)(2), and the state court’s decision to allow Agan’s testimony

was not contrary to or an unreasonable application of clearly established Supreme

Court precedent, id. § 2254(d)(1).

      The California Court of Appeal determined that the trial court did not

deprive Quilopras of his right to testify on his own behalf when it ruled that the

State could impeach Quilopras with his prior murder conviction. This

determination was not contrary to or an unreasonable application of clearly

established Supreme Court precedent. Id. In Luce v. United States, 469 U.S. 38

(1984), the Supreme Court held that “to raise and preserve for review the claim of

improper impeachment with a prior conviction, a defendant must testify.” Id. at 43.




                                          4
Quilopras did not testify at trial. As a result, he has not preserved for review his

claim of improper impeachment.

      AFFIRMED.




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