Bradley Wright v. Jeff MacOmber

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2024
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRADLEY WRIGHT,                                 No.    20-56046

                Petitioner-Appellant,           D.C. No. 2:18-cv-00566-PLA

 v.
                                                MEMORANDUM*
JEFF MACOMBER, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Paul L. Abrams, Magistrate Judge, Presiding

                           Submitted December 3, 2024
                              Pasadena, California

Before: SANCHEZ and DE ALBA, Circuit Judges, and ZIPPS,** Chief District
Judge.

      Bradley Wright (“Petitioner”) appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition challenging his conviction for assault with a

deadly weapon. As he did below, Petitioner argues that the state trial court



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Jennifer G. Zipps, Chief United States District Judge
for the District of Arizona, sitting by designation.
violated his right to due process by excluding his expert’s testimony and denying

his request for a continuance to find a replacement. See Chambers v. Mississippi,

410 U.S. 284, 302 (1973); Ungar v. Sarafite, 376 U.S. 575, 588–91 (1964).

      We review a district court’s denial of a habeas corpus petition de novo.

Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), when, as here,

a state court has adjudicated a petitioner’s claim on the merits, we may grant relief

only if “the state court's decision was (1) contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States or (2) based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” Sherman v.

Gittere, 92 F.4th 868, 875 (9th Cir. 2024) (quoting 28 U.S.C. § 2254(d)(1)–(2))

(quotation marks omitted). We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253(a). We affirm.1

      1.     Petitioner contends that the California Court of Appeals (“CCA”)

based its decision to affirm the state trial court’s ruling on an unreasonable

determination of the facts in light of the evidence presented in his case. We must

review the decision using the same framework used by the CCA. Brumfield v.



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            We grant Petitioner’s motion for judicial notice of his expert’s
proposed presentation and transcript of his expert’s testimony in a prior case.

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Cain, 576 U.S. 305, 313 (2015). “We may not characterize . . . state-court factual

determinations as unreasonable ‘merely because [we] would have reached a

different conclusion in the first instance.’” Id. at 313–14 (alteration in original)

(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). If “‘[r]easonable minds

reviewing the record might disagree’ about the finding in question, ‘on habeas

review that does not suffice to supersede the trial court’s . . . determination.’”

Wood, 558 U.S. at 301 (alterations in original) (quoting Rice v. Collins, 546 U.S.

333, 341–342 (2006)).

      A state court may make an unreasonable determination of the facts by

neglecting to make a finding of fact when it should have done so, making factual

findings under a misapprehension as to the correct legal standard, engaging in a

defective fact-finding process, or ignoring evidence that supports the petitioner’s

claim. See Kipp v. Davis, 971 F.3d 939, 953–54 (9th Cir. 2020) (citing Taylor v.

Maddox, 366 F.3d 992, 1000–01 (9th Cir. 2004), abrogated on other grounds by

Murray, 745 F.3d at 999–1000). Here, the CCA made reasonable factual

determinations when it upheld the trial court’s decision to exclude the testimony of

Petitioner’s expert, Dr. Bruce Krell (“Dr. Krell”). It accurately described Dr.

Krell’s detailed testimony regarding his training and experience. The CCA noted

that Dr. Krell had a PhD in applied mathematics, taught a ballistics class at a

Marine sniper school, and had testified 25 or 30 times as an expert, including 15 or


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20 times as a ballistics expert. Unlike the state court in Kipp, the CCA did not

ignore evidence that supported Petitioner’s claim. See 971 F.3d at 955.

Petitioner’s disagreement is with the conclusions the CCA made based on the facts

of his case rather than with its determination of the facts themselves.

      Petitioner’s contention that the CCA made an unreasonable determination of

the facts when it upheld the trial court’s decision to deny his request for a

continuance is similarly mistaken. The CCA recounted that Dr. Krell was

appointed from the Los Angeles County Superior Court’s criminal expert panel

while Petitioner was pro se and that the prosecution never challenged Dr. Krell’s

qualifications at Petitioner’s first trial. The CCA found that the prosecution

expressed concerns about Dr. Krell to defense counsel several months before

Petitioner’s second trial while noting that the prosecution and defense disagreed

about the nature of these concerns. The CCA correctly stated that Petitioner never

suggested that he could find a qualified expert who would have shared Dr. Krell’s

opinion. Petitioner’s disagreement is with the CCA’s conclusions, such as its

determination that he would not have benefited from a continuance, rather than

with the facts it relied upon to reach its conclusions.

      2.     Petitioner also argues that the CCA’s decision was contrary to, and an

unreasonable application of, clearly established Federal law as determined by the

Supreme Court. “A state court decision is ‘contrary to’ clearly established


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Supreme Court precedent if the state court applies a rule that contradicts the

governing law set forth in Supreme Court cases or if the state court confronts a set

of facts materially indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different from its precedent.”

Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004) (citing Lockyer v. Andrade,

538 U.S. 63, 73 (2003)). “[U]nder the ‘unreasonable application’ clause, a federal

habeas court may grant the writ if the state court identifies the correct governing

legal principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 75. We cannot

grant a petition “simply because [we] conclude[] in [our] independent judgment

that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362, 411 (2000)

(O’Connor, J., concurring).

      Petitioner maintains that the CCA’s decision was contrary to Chambers

because it failed to consider the impact of the trial court’s evidentiary rulings in

total. 410 U.S. at 298. Petitioner asks that we consider whether the trial court’s

decisions, in conjunction, “denied him a trial in accord with traditional and

fundamental standards of due process.” Id. at 302.

      However, the trial court’s decision to deny his request for a continuance was

not an evidentiary ruling. Petitioner fails to identify another evidentiary ruling that


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the CCA should have considered along with the trial court’s decision to exclude

Dr. Krell’s testimony. Chambers does not clearly establish that a trial court’s

evidentiary ruling, when considered with its decision to deny a request for a

continuance, may amount to a violation of an individual’s right to due process.

      The CCA’s application of Chambers was also reasonable. The CCA relied

upon evidence in the record, such as Dr. Krell’s lack of formal training in bullet

trajectory and crime scene reconstruction, to uphold the trial court’s decision. That

jurists may disagree whether it was correct to uphold the trial court’s exclusion of

Dr. Krell’s testimony and not delay trial further does not satisfy Petitioner’s burden

under AEDPA. See Nevada v. Jackson, 569 U.S. 505, 508–09 (2013) (“It is settled

that a federal habeas court may overturn a state court’s application of federal law

only if it is so erroneous that ‘there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with this Court’s precedents.’”

(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011))).

      AFFIRMED.




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