Michael Warzek v. Frank Chavez , 586 F. App'x 453 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL RANDAL WARZEK, No. 13-16335
Petitioner - Appellant, D.C. No. 4:10-cv-02632-PJH
v.
MEMORANDUM*
FRANK X. CHAVEZ,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted December 8, 2014**
San Francisco, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.***
*
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).
***
The Honorable Gloria M. Navarro, Chief United States District Judge
for the District of Nevada, sitting by designation.
Petitioner Michael Warzek appeals the district court’s denial of his petition
for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. § 2253, and affirm.
We reject Warzek’s argument that the trial court’s admission of evidence
related to his possession of child pornography violated his federal due process
rights. Because the Supreme Court has left open the question of whether the
admission of propensity evidence violates due process, see Alberni v. McDaniel,
458 F.3d 860, 866–67 (9th Cir. 2006), the trial court’s admission of the
pornographic images cannot amount to an unreasonable application of clearly
established Federal law, see Wright v. Van Patten, 552 U.S. 120, 126 (2008).
We likewise reject Warzek’s claim that the trial court violated his
constitutional rights by allowing the government to cross-examine him about the
child pornography found on his personal computer. It was not objectively
unreasonable for the state court to conclude that the prosecutor’s questions were
“reasonably related” to Warzek’s direct examination, where he categorically
denied committing any sexual offense against the victim. See Ohler v. United
States, 529 U.S. 753, 759 (2000).
Warzek’s ineffective assistance of counsel claim likewise fails because he
cannot show that he is entitled to relief given the deference to Strickland claims
2
reviewed under AEDPA. See Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770,
788 (2011). The state court of appeal held that “since all of the challenged
questions related to the computer expert’s investigation and testimony, trial
counsel could reasonably have failed to object because he held no doubt that the
prosecutor” was permitted to ask the questions under state law. Because this court
must deny relief if “there is any reasonable argument that counsel satisfied
Strickland’s deferential standard,” the state court’s stated rationale supports
affirming the district court’s denial of Warzek’s ineffective assistance of counsel
claim. Richter, 131 S. Ct. at 788.
AFFIRMED.
3