Morrad Ghonim v. Raymond Madden ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORRAD M. GHONIM, No. 21-55485
Petitioner-Appellant, D.C. No. 2:19-cv-08614-GW-AFM
v.
RAYMOND MADDEN,
MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted May 17, 2022
Pasadena, California
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,** District Judge.
Morrad M. Ghonim appeals from the judgment of the district court denying
his habeas corpus petition challenging his conviction for the first-degree murder of
his wife Vicky. The murder occurred in July 1992. On the evening of the murder,
Ghonim and Vicky went to Creek Park in La Mirada, California, with their six-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
month-old baby. A man named Leon Martinez shot Vicky five times while she was
in the car, and he was convicted of her murder. In exchange for a shorter sentence,
Martinez testified at Ghonim’s 2016 trial that Ghonim hired him to murder Vicky.
Ghonim, who did not testify at trial, argued that, contrary to Martinez’s testimony,
the shooting was not a premeditated murder. Instead, he claimed that the shooting
occurred spontaneously after Martinez and some gang members started cat-calling
Vicky at the park.
In support of this theory, Ghonim sought to offer evidence that Martinez was
a gang member. Martinez disclaimed any gang membership, and the trial judge
declined to admit extrinsic evidence that Martinez was a gang member on the
grounds, inter alia, that the evidence was irrelevant and cumulative of other evidence
of Martinez’s violent disposition.
After the jury found Ghonim guilty, he filed a direct appeal, in which he
argued that: (1) the trial court violated his right to present a defense by excluding
extrinsic evidence that Martinez was a gang member; (2) the trial court erred by
denying his request to excuse a juror for cause; and (3) the trial court erred by
admitting prejudicial statements from his ex-wife Nisreen Alfaleh. The California
Court of Appeal rejected these claims. See People v. Ghonim, 2018 WL 1465823(Cal. Ct. App. Mar. 26, 2018). The California Supreme Court summarily denied
review. Ghonim then filed this 28 U.S.C. § 2254 petition. The district court rejected
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each of the forgoing claims but issued a certificate of appealability only as to the
issue of the exclusion of extrinsic evidence of Martinez’s gang membership. We
affirm this holding and deny Ghonim’s motion for a certificate of appealability as to
the other two issues.
On direct appeal, the California Court of Appeal held that the trial judge
properly excluded the extrinsic evidence that Martinez was a gang member because
the probative value of attempting to prove that Martinez was a gang member was
slight and the “line of questioning would lead to undue consumption of time on
‘extraneous issues.’” Ghonim, 2018 WL 1465823 at *8. The California Court of
Appeal held that the exclusion of this evidence did not violate Ghonim’s
constitutional right to present a defense. Id. And Ghonim had not shown that “there
[was] a reasonable probability the verdict would have been different had the trial
court allowed him to try to prove Martinez was a gang member at the time of the
murder.” Id. (citing People v. Boyette, 58 P.3d 391, 421 (Cal. 2002)). Ghonim
argues on appeal that both prongs of this holding were erroneous.
1. Ghonim’s argument on the merits cannot survive the standard of review
that applies to “the availability of federal habeas relief” for “claims previously
‘adjudicated on the merits’ in state-court proceedings.” Harrington v. Richter, 562
U.S. 86, 92 (2011). Under that standard, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded jurists could
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disagree on the correctness of the state court’s decision.” Id. at 101 (internal
quotation marks and citation omitted). Mere disagreement with a state court’s
determination, however, is not sufficient.
Our review of the record persuades us that the state court reasonably
concluded that Ghonim’s ability to present his defense that Martinez acted
spontaneously was not significantly impaired by the exclusion of evidence that
Martinez was, in fact, a gang member. Martinez testified that he associated with
gang members, including on the day of the murder, and that, based on their clothing,
he saw gang members in the park on the day of the murder. Thus, Ghonim’s version
of events—that the shooting was precipitated by a confrontation with gang members
in the park—was not foreclosed by the exclusion of that evidence. And evidence of
gang membership was cumulative of other evidence introduced to prove Martinez’s
predisposition for violence.
2. Moreover, Ghonim has failed to show that the exclusion of evidence of
Martinez’s gang membership, even if erroneous, had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (citation omitted); see Fry v. Pliler, 551 U.S. 112, 121–22
(2007). The evidence at trial strongly supported the inference that Vicky’s murder
was premeditated and had nothing to do with Martinez’s alleged gang membership.
For example, Martinez was dressed to kill—he wore two sets of clothing to a park
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in the middle of July and discarded one layer in the bushes after fleeing the scene.
Indeed, when asked why he wore two sets of clothes, Martinez testified that it was
“[b]ecause [he] was going to commit a murder.” Thus, Ghonim cannot show that
the exclusion of the evidence of Martinez’s gang membership had an injurious effect
on the jury’s verdict.
3. Ghonim moves for a certificate of appealability with respect to the two
issues that the district judge declined to certify. To merit a certificate of
appealability, Ghonim must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Ghonim fails to meet this standard
for either issue, and we deny his motion.
First, Ghonim argues that he was deprived of his right to an impartial jury
when the trial court refused to excuse a juror for cause and that the California Court
of Appeal’s decision deferring to that ruling was unreasonable. This claim
challenges the trial judge’s assessment of the credibility of the prospective juror, to
which the Court of Appeal deferred. Ghonim, 2018 WL 1465823 at *10. Such a
finding is “presumed to be correct,” and Ghonim has failed to rebut it “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Second, Ghonim challenges the admission of his ex-wife’s testimony that he
had threatened to hurt her if she sought a divorce and, alluding to the hiring of
Martinez, that “[i]t cost me [$]500 then, it won’t cost me much now.” These
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statements were inextricably intertwined with his admission that he paid money to
have Vicky killed. This testimony was highly relevant, see Estelle v. McGuire, 502
U.S. 62, 69–70 (1991), and its admission did not “violate[] ‘fundamental
conceptions of justice,’” Dowling v. United States, 493 U.S. 342, 352 (1990)
(quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)). Nothing in the federal
Due Process Clause prohibited the California Court of Appeal from concluding that
the challenged testimony did not come within the marital communications privilege
under California law because Ghonim could not have entertained any expectation
that these statements would have remained private and that his wife was not free to
disclose them. See People v. Bryant, 334 P.3d 573, 647–48 (Cal. 2014); see also
United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992).
AFFIRMED.
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