William Peter New v. DOMINGO URIBE, Jr., Warden; THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM PETER NEW,
Petitioner - Appellant,
v.
DOMINGO URIBE, Jr., Warden; THE
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondents - Appellees.
No. 11-57055
D.C. No. 3:09-cv-02609-JLS-POR
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted April 12, 2013
Pasadena, California
Before: RAWLINSON and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**
Appellant William New (New) appeals the district court’s denial of his
petition for a writ of habeas corpus.
FILED
JUL 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.

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1. In concluding that the trial court did not err in holding that the
justification for the delay outweighed any prejudice to New, see People v. New, 77
Cal. Rptr. 3d 503, 520-21 (Ct. App. 2008), the state appellate court did not
unreasonably apply clearly established federal law. The relevant Supreme Court
precedents explicitly decline to set out a clear test for balancing justification
against prejudice, asserting that such balancing requires case-by-case
consideration. See United States v. Lovasco, 431 U.S. 783, 796-97 (1977); United
States v. Marion, 404 U.S. 307, 324-25 (1971). In light of the lack of a clear test,
we cannot say that the state court applied Supreme Court law in a manner that was
objectively unreasonable in finding that the justification here outweighed the
prejudice. See Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011); see also
Cudjo v. Ayers, 698 F.3d 752, 761 (9th Cir. 2012) (“[T]he only definitive source of
clearly established federal law under AEDPA is the holdings . . . of the Supreme
Court . . .”) (citations and internal quotation marks omitted) (emphasis in the
original). Nor can we say that the state court unreasonably applied clearly
established Supreme Court law by noting that a federal due process claim based on
pre-indictment delay requires a showing that the delay was undertaken by the State
to gain a tactical advantage over the defendant. See New, 77 Cal. Rptr. 3d at 515.
Though our court has held that there is no such requirement, see United States v.
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Moran, 759 F.2d 777, 781 (9th Cir. 1985), other courts, including the California
Supreme Court, disagree, see, e.g., People v. Catlin, 26 P.3d 357, 373 (Cal. 2001).
It was not unreasonable for the state court to side with the California Supreme
Court. See Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (“[C]ircuit precedent
may [not] be used to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced. . . .”)
(citations omitted). Morever, even if it was unreasonable, any error was harmless.
The state court noted that California law does not require a showing of intended
tactical advantage for a valid state due process claim, yet still found no state
violation. New, 77 Cal. Rptr. 3d at 520-21. Thus any error as to the federal
standard did not have a “substantial and injurious” effect on the defendant because
the state court would have come to the same conclusion on the federal claim even
if it had not required a showing of intended tactical advantage. See Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993).
2. New has failed to point us to clearly established Supreme Court
precedent that misjoinder of claims against a defendant can violate due process,
and we have discovered none. Even if there were clearly established precedent, the
state court reasonably concluded that the joinder of both murder counts did not
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deprive New of due process. A joinder of charges only violates due process if the
jury’s verdict is prejudicially influenced. Where, as here, evidence of both murders
was relatively strong and cross-admissible to prove identity or intent, and the trial
court instructed the jury to consider each murder charge separately, the joinder of
both murder counts did not prejudice New. See Davis v. Woodford, 384 F.3d 628,
638-39 (9th Cir. 2004), as amended.
AFFIRMED.
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