United States v. 2014-03-12 | 10-56615 | JESUS RIVAS V. MATTHEW CATE | nonprecedential | memorandum…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS RIVAS, ) No. 10-56615
)
Petitioner - Appellant, ) D.C. No. 2:09-cv-02200-JHN-DTB
)
v. ) MEMORANDUM*
)
MATTHEW L. CATE, Warden, )
)
Respondent - Appellee. )
)
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted March 4, 2014
Pasadena, California
Before: FERNANDEZ and GRABER, Circuit Judges, and ZOUHARY,**
District Judge.
Jesus Rivas appeals the district court’s denial of his petition for a writ of
habeas corpus. See 28 U.S.C. § 2254. We affirm.
Rivas asserts that his rights under the Sixth and Fourteenth Amendments to
FILED
MAR 12 2014
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 Jack Zouhary, United States District Judge for the Northern
District of Ohio, sitting by designation.

-- 1 of 4 --

the United States Constitution were violated when the state courts excluded
evidence regarding Rivas’ post-traumatic stress disorder (PTSD) defense to the
murder and other charges against him. We disagree.
Rivas first insists that we should apply a balancing test developed by our
court to assess whether the exclusion deprived him of a complete defense. See
Miller v. Stagner, 757 F.2d 988, 994–95 (9th Cir. 1985); see also Perry v. Rushen,
713 F.2d 1447, 1452–53 (9th Cir. 1983). He is wrong.
We must apply “clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Williams v.
Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). We
must not consider circuit law that seeks to “refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that [the] Court has not
announced.” Marshall v. Rodgers, __ U.S. __, __ ,133 S. Ct. 1446, 1450, 185 L.
Ed. 2d 540 (2013) (per curiam). That precludes the application of circuit
precedents that convert the Court’s “highly generalized” standards into an
“elaborate, multistep test” that the Court has not adopted. Parker v. Matthews, __
U.S. __, __, 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012) (per curiam). Because
of those strictures we have held, in a case where expert witness evidence was
excluded, that Miller is “a creation of circuit law” and “we cannot fault the state
2

-- 2 of 4 --

appellate court” unless it violates Supreme Court precedent. Moses v. Payne, 555
F.3d 742, 759 (9th Cir. 2009).
The state courts excluded the mental defense premised on chronic PTSD
because they determined that what was reflected in the expert’s weak report was
unhelpful and did not even indicate how PTSD prevented Rivas from forming the
requisite mental state. California law prohibits a general defense of diminished
capacity. Cal. Penal Code § 28. Without a nexus between the disorder and Rivas’
specific intent, the diagnosis of chronic PTSD and the evidence of what happened
in El Salvador more than twenty years earlier were excludable. Those exclusions
were not similar to the rare instances1 where the Supreme Court has found a
violation of the Constitution after balancing a state’s interest in excluding certain
kinds of evidence against the defendant’s interest in presenting a complete
defense.2 Thus, we cannot say that there was a violation of the Constitution.
1See Nevada v. Jackson, __ U.S. __, __, 133 S. Ct. 1990, 1992, 186 L. Ed.
2d 62 (2013) (per curiam) (“Only rarely have we held that the right to present a
complete defense was violated by the exclusion of defense evidence under a state
rule of evidence.”); see also United States v. Scheffer, 523 U.S. 303, 308–09, 118
S. Ct. 1261, 1264–65, 140 L. Ed. 2d 413 (1998).
2See Holmes v. South Carolina, 547 U.S. 319, 330–31, 126 S. Ct. 1727,
1734–35, 164 L. Ed. 2d 503 (2006); Crane v. Kentucky, 476 U.S. 683, 689–91,
106 S. Ct. 2142, 2146–47, 90 L. Ed. 2d 636 (1986); Chambers v. Mississippi, 410
U.S. 284, 302–03, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973); Washington v.
(continued...)
3

-- 3 of 4 --

Moreover, even if excluding the evidence was error, it was harmless due to the
extensive evidence that Rivas formed malice aforethought. See Brecht v.
Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993);
Moses, 555 F.3d at 760.
AFFIRMED.
2(...continued)
Texas, 388 U.S. 14, 22–23, 87 S. Ct. 1920, 1925, 18 L. Ed. 2d 1019 (1967); cf.
Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 2714, 97 L. Ed. 2d 37 (1987).
4

-- 4 of 4 --