Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

MEMORANDUM^** 

Petitioner Remigio Castro (Castro) is a prisoner incarcerated at the Oahu Community Correctional Center. He appeals from the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Castro claims the state trial court's failure to grant his request for a new trial based upon newly discovered evidence denied him his right to due process. We disagree and affirm.

A federal court will not overturn a state conviction in habeas corpus proceedings unless the ruling has deprived the defendant of a federal constitutional right. McGuire v. Estelle, 902 F.2d 749 (9th Cir. 1990). Castro argues that the test employed by Hawaii in State v. McNulty, 588 P.2d 438 (1978) for determining whether a new trial should be granted based on newly discovered evidence violated his right to due process.

In State v. McNulty, the Hawaii Supreme Court set forth a four-part test to determine whether, in light of newly discovered evidence, a new trial is warranted. Each of the requirements must be satisfied. The test is: "1) the evidence has been discovered after trial; 2) such evidence could not have been discovered before or at trial through the exercise of due diligence; 3) the evidence is material to the issues and not cumulative or offered solely for the purposes of impeachment; and 4) the evidence is of such a nature that it would probably change the result of a later trial." 588 P.2d at 445 (citations omitted). The state trial court denied Castro's motion for a new trial because "bearing in mind the credible eye witness identification of Petitioner at trial by the prosecution witness ... there is not a probability that the testimony of ... Ruben Ancheta (who later repudiated his recantation testimony) ... would result in a different verdict in a new trial."

A similar argument was presented to this court by a state prisoner in Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980). In Quigg, the petitioner argued that the refusal of the state trial court to reopen the trial based on newly discovered evidence violated his right to due process. Id. at 1112. We rejected this contention and held that newly discovered evidence does not warrant habeas corpus relief pursuant to 28 U.S.C. § 2254 unless the new evidence would probably produce an acquittal. Id. The "probability of acquittal" standard is substantially equivalent to that set forth in the McNulty case. Therefore, Castro has failed to demonstrate that his federal constitutional rights were violated by the State of Hawaii.

Without discussing the law of this circuit set forth in Quigg v. Crist, Castro argues that the standard of review that should be applied is the "rational trier of fact" test set forth in Jackson v. Virginia, 443 U.S. 307, 309 (1979). Castro's reliance on Jackson v. Virginia is misplaced.

In Jackson v. Virginia, the Supreme Court set forth the test to be applied on a state prisoner habeas corpus proceeding in reviewing the sufficiency of the evidence to sustain a conviction. Id. at 313-324. Jackson v. Virginia has no application to the question whether a new trial should have been granted by a state court based on newly discovered evidence.

AFFIRMED.