                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 09 2014

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



                            FOR THE NINTH CIRCUIT


RICHARD GALVAN,                                  No. 12-16231

              Petitioner - Appellant,            D.C. No. 5:06-cv-04143-RMW

  v.
                                                 MEMORANDUM*
JAMES A. YATES, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                 Ronald M. Whyte, Senior District Judge, Presiding

                            Submitted October 7, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

       Richard Galvan appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his conviction for multiple sex offenses against




        *
             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).
an intoxicated minor. We have jurisdiction pursuant to 28 U.S.C. § 2253. We

review de novo, Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014), and affirm.

      Habeas relief is available 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,” 28 U.S.C. § 2254(d)(1),

and only if the error had a “substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637–38

(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). See also

Fry v. Pliler, 551 U.S. 112, 121–22 (2007) (holding that the Brecht standard is

proper in post-AEDPA cases)

      The issue on appeal is whether Galvan was denied a fair trial when the trial

court applied California’s rape shield law and excluded evidence of the victim’s

prior sexual conduct and possession of condoms. To the extent Galvan argues this

evidence was in fact admissible under California’s “with the defendant” exception

in relation to the “in concert” charges, AEDPA precludes our review. We are

bound by the state court’s interpretation of state law and errors of state law do not

warrant federal habeas relief unless they also violate federal law. Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991).




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      Turning to Galvan’s federal arguments, the state court’s decision was neither

contrary to nor an unreasonable application of clearly established federal law

because the evidence proffered was “only marginally relevant” and its exclusion

was not “disproportionate” to the legitimate purposes it served. Holmes v. South

Carolina, 547 U.S. 319, 326–27 (2006). See also Michigan v. Lucas, 500 U.S.

145, 150 (1991) (noting a state’s legitimate “determination that rape victims

deserve heightened protection against surprise, harassment, and unnecessary

invasions of privacy”). It was reasonable to conclude that this evidence was not

relevant because it did not involve Galvan, whom the victim had not met before the

party. The same analysis applies to its probative value to the “in concert” charges

in light of the absence of evidence that Galvan was aware of the prior encounter. It

is similarly not probative of the victim’s “modus operandi” or credibility regarding

consent to Galvan. The exclusion of this evidence and limitation of cross-

examination did not deny Galvan’s right to due process. The state court therefore

did not unreasonably apply clearly established federal law.

      Galvan’s alternative argument that evidence of the victim’s prior sexual

conduct with a witness was admissible to impeach that witness is also unavailing.

Even if the trial court erred by prohibiting Galvan from cross-examining the

witness “to show a prototypical form of bias on the part of the witness,” Delaware


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v. Van Arsdall, 475 U.S. 673, 680 (1986), it did not have a “substantial and

injurious effect or influence in determining the jury’s verdict” for the reasons

identified by the state court and district court. Brecht, 507 U.S. at 637–38.

      AFFIRMED.




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