Curtis Hill v. Joe Lizarraga ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS J. HILL, No. 16-55137
Petitioner-Appellant,
D.C. No.
v. 8:15-cv-00399-JAK-KS
JOE A. LIZARRAGA, Warden,
Respondent-Appellee. MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Before: FISHER,** WATFORD, and FRIEDLAND, Circuit Judges.
Petitioner Curtis Hill assaulted and robbed 77-year-old Cecil Warren, who
then slipped into a coma and was placed on life support. When Warren passed
away while still on life support four years later, Petitioner was convicted of felony
murder on the basis that pneumonia caused by Warren’s intubation led to his death.
See Cal. Penal Code §§ 187(a), 189. After Petitioner’s state conviction was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
affirmed on direct review, he filed a habeas petition in federal court. Petitioner
now raises three arguments on appeal from the district court’s dismissal of his
petition. We reject these arguments and AFFIRM.
First, it was not clearly unreasonable for the state court to conclude that it
was permissible under the Confrontation Clause for the state’s medical experts to
discuss the findings of a non-testifying neuropathologist during their testimony on
the cause of Warren’s death. Given the confusion engendered by the Supreme
Court’s fractured decision in Williams v. Illinois, 567 U.S. 50 (2012), “‘fairminded
jurists could disagree’ on the correctness” of the state court’s decision to allow
testimony discussing the non-testifying neuropathologist’s report. See Harrington
v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)); see also Williams, 567 U.S. at 141 (Kagan, J., dissenting)
(describing the holding of Williams as “to be frank—who knows what”).
Second, the district court did not err by declining to consider two new
medical expert reports that Petitioner submitted to the district court approximately
six months after filing his petition. Because the reports were filed without any
explanation of how or when Petitioner acquired them or of which claims they were
meant to support, the district court had no reason to believe that any claim based
on these reports would be either timely or exhausted. Even after the magistrate
judge expressly faulted Petitioner for failing to explain the circumstances
2
surrounding the reports or why he did not submit them earlier, Petitioner made no
mention of them in his objections to the magistrate judge’s Report and
Recommendations.1
Finally, Petitioner cannot show “that the interests of justice” required that
the district court appoint Petitioner counsel to pursue a claim based on the newly
submitted medical reports.2 See 18 U.S.C. § 3006A(a)(2). Even accepting
Petitioner’s argument that this case involves complex medical and procedural
issues, the district court refused to recognize any new claim based on the reports
because Petitioner did not explain the circumstances surrounding their acquisition
or belated filing—not because Petitioner was unable to untangle the legal issues in
this case.
AFFIRMED.
1
We note, however, that we are not opining on whether Petitioner might still
be able to pursue an ineffective assistance of counsel claim—or any other claim
supported by the medical reports—in a state court habeas proceeding. See In re
Sanders, 981 P.2d 1038, 1042 (Cal. 1999) (explaining that California will “excuse
delay” for “a litigant mounting a collateral challenge to a final criminal judgment”
“on a showing of good cause”).
2
We have repeatedly held that appointment of counsel is discretionary
“[u]nless an evidentiary hearing is required.” Knaubert v. Goldsmith, 791 F.2d
722, 728 (9th Cir. 1986); see also Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th
Cir. 1988). Petitioner does not suggest that an evidentiary hearing was necessary
here, but instead argues that he was entitled to counsel to assist him with “effective
discovery” under Rule 6(a) of the Rules Governing Section 2254 cases. Even
assuming that Petitioner’s interpretation of that rule is correct, discovery should
not have been necessary for Petitioner to be able to explain how he acquired the
new medical reports.
3