Argued and Submitted January 8, 2013—Pasadena, California
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding D.C. No. 3:09-cv-02801-WQH-WVG
Todd W. Burns (argued), Burns & Cohan, San Diego, California, for Petitioner-Appellant.
Lynne G. McGinnis (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Julie L. Garland, Senior Assistant Attorney General; Kevin Vienna and Gil Gonzalez, Supervising Deputy Attorneys General, Office of the Attorney General, San Diego, California, for Respondents-Appellees.
Before: Alex Kozinski, Chief Judge, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a murder conviction.
Petitioner sought to test the remainder of a blood sample after the prosecution had conducted an initial DNA test, with no obligation to reveal the test results to the prosecution. The panel held that the state trial court's compromise – to have either a neutral laboratory or the defense expert test the blood, but only if the results were made available to both parties – was neither contrary to nor an unreasonable application of clearly established federal law.
M. SMITH, Circuit Judge.
Parakkamannil Koshy Bilji Varghese, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted Varghese of stabbing and murdering his ex-wife's lover. A key piece of evidence in the case was a small blood stain found at the crime scene. The prosecution's initial test of the blood stain showed that it matched Varghese's DNA. Varghese requested the remaining blood sample to conduct a DNA test using his own expert, but without having to disclose the test results to the prosecution, even though a second test would likely consume the remaining blood. The trial court denied Varghese's request and instead offered Varghese the choice of having either an independent laboratory or his own expert test the blood, but only if the test results were made available to both parties. Varghese's counsel refused the trial court's proposal. Varghese appealed, arguing, among other things, that the trial court's ruling violated his right to counsel. In a reasoned decision, the California Court of Appeal affirmed the trial court.
On federal habeas review, Varghese claims that the trial court's ruling regarding the blood sample violated his constitutional rights to counsel and due process. Because, at the time the California Court of Appeal rendered its decision, there was no Supreme Court decision that squarely addressed Varghese's claims, or announced a principle that clearly extended to the circumstances of this case, we hold that the state court's decision was not "contrary to" or an "unreasonable application" of "clearly established Federal law" under 28 U.S.C. § 2254(d)(1). Accordingly, we affirm.
FACTS AND PRIOR PROCEEDING
A. Factual Background
In April 2003, Varghese and his wife, Vilia Varghese, separated. Varghese was unhappy with the separation and did not want a divorce. During this period, Vilia began a relationship with ...