Richard v. Dexter, No. 07-55736 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT KEVIN L. RICHARD, No. 07-55736 Petitioner - Appellant, D.C. No. CV-04-04519-VAP v. MEMORANDUM * DEBRA DEXTER, Respondent - Appellee. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. California state prisoner Kevin L. Richard appeals from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. * 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). Richard contends the trial court violated his right to present a defense by precluding him from introducing evidence of third party culpability. The state court s rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Richard fails to show the proffered evidence was admissible under People v. Hall, 41 Cal. 3d 826 (1986). Therefore, its exclusion did not violate his constitutional right to present a defense under Crane v. Kentucky, 476 U.S. 683, 690 (1986). See Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006) ( the Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues ) (alterations in original) (internal quotations omitted); see also Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999) (concluding that state trial court did not infringe defendant s constitutional rights by excluding speculative third-party culpability evidence). We construe Richard s additional argument as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). AFFIRMED. 2 07-55736

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