David Viens v. Stuart Sherman ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID VIENS, No. 17-55286
Petitioner-Appellant, D.C. No. 2:15-cv-08593-FFM
v.
MEMORANDUM*
STUART SHERMAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Frederick F. Mumm, Magistrate Judge, Presiding
Submitted August 14, 2019**
Pasadena, California
Before: CALLAHAN, CHRISTEN, and R. NELSON, Circuit Judges.
California state prisoner David Viens appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for second
degree murder after the petition was referred to and denied by a magistrate judge.
Viens argues that he did not unambiguously consent to the magistrate judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction, and even if he did, a subsequent Election Regarding Consent to
Proceed Before a United States Magistrate Judge (“Election Regarding Consent”)
form attached to another filing served to rescind his consent. We have jurisdiction
under 28 U.S.C. § 2253. We affirm the denial of Viens’s petition.
1. We review de novo whether a magistrate judge had jurisdiction. Parsons
v. Ryan, 912 F.3d 486, 495 (9th Cir. 2018). Pursuant to 28 U.S.C. § 636(c)(1), a
magistrate judge can conduct all proceedings and enter an order of judgment in a
civil matter if all of the parties consent to the magistrate judge’s jurisdiction.
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). A plaintiff may consent
to the jurisdiction by selecting the “consent box” on the court-provided Election
Regarding Consent form. Id. at 1119. Here, Viens placed a bold “XX” in the
“Yes” box, and a faint, barely visible single “X” in the “No” box. The selection in
the “Yes” box is clear and distinct, while the selection in the “No” box suggests an
attempt at some sort of erasure. We are satisfied that Viens voluntarily consented
to the exercise of the magistrate judge’s jurisdiction. Id.Once parties have consented to magistrate judge jurisdiction, the reference to
the magistrate judge can only be withdrawn “for good cause shown on its own
motion, or under extraordinary circumstances shown by any party.” § 636(c)(4);
Fed. R. Civ. P. 73(b)(3). Viens did not file a motion to withdraw consent or
present any extraordinary circumstances that would warrant such a withdrawal.
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The fact that Viens later attached a second Election Regarding Consent form, with
the “No” box checked, to an unrelated filing does not change the analysis. “There
is no absolute right, in a civil case, to withdraw consent to trial and other
proceedings before a magistrate judge.” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.
1993).
2. In addition to the certified claim, Viens raises an uncertified claim. When
a habeas petitioner seeks to initiate an appeal, he must obtain a certificate of
appealability (“COA”) under 28 U.S.C. § 2253(c). See Slack v. McDaniel, 529
U.S. 473, 478, 480–81 (2000). A petitioner must make “a substantial showing of
the denial of a constitutional right” in order to obtain a COA. 28 U.S.C.
§ 2253(c)(2). To do so, “the petitioner ‘must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve encouragement to
proceed further.’” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000)
(alteration in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Because Viens has made “a substantial showing of the denial of a constitutional
right,” we grant a COA.
Viens argues that his counsel provided ineffective assistance by failing to
adequately present evidence of Viens’s physical and mental condition at the time
he gave statements to the police one week after surviving a suicide attempt of
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jumping off a 60-foot cliff. At a March 1 interview at the hospital, Viens admitted
to the police that he duct-taped his wife’s hands, feet, and mouth, found her dead
the next morning, and put her body in a garbage bag and into the dumpster behind
his restaurant. The statements were repeated in even more depth at the March 15
interview. The district court denied a motion to suppress these statements and
denied habeas relief for this ineffective assistance claim. The magistrate judge
found that there is no reason to believe that any additional evidence would have
altered the outcome. We agree. Viens confessed virtually the same facts to his
daughter and confessed to his girlfriend that he killed his wife. Even if counsel’s
performance was deficient, Viens does not show that excluding the March
interview statements would have “a probability sufficient to undermine confidence
in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We deny
habeas relief on this claim.
AFFIRMED.
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