Joseph Hathorn Nuccio v. M. D. McDonald

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH HATHORN NUCCIO,
Petitioner - Appellant,
v.
M. D. MCDONALD,
Respondent - Appellee.
No. 14-15684
D.C. No. 2:10-cv-02652-TLN-
KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted January 6, 2016**
San Francisco, California
Before: KOZINSKI, NOONAN, and O’SCANNLAIN, Circuit Judges.
Joseph Nuccio appeals the denial of his petition for writ of habeas corpus
under 28 U.S.C. § 2254. Nuccio’s petition challenges his first-degree murder
conviction for the death of Jody Zunino on the grounds that the state violated the
FILED
APR 07 2016
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Sixth Amendment’s Compulsory Process Clause when it failed to ensure defense
witness Terry Sprinkle’s attendance at trial.
1. Even assuming Supreme Court precedent clearly establishes the state’s duty
to assist the defense in compelling a witness’s attendance at trial, Nuccio’s
Compulsory Process Clause claim fails because he did not establish that Sprinkle’s
testimony would have been either material or favorable to Nuccio’s defense.
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
Sprinkle’s statement “that he was going to take his wife to North Dakota and
[nobody would ever] get [them] into court” suggests he would have refused to
testify at Nuccio’s trial pursuant to the Fifth Amendment privilege against self-
incrimination. In addition, the trial court held that it would only allow Sprinkle to
testify about his statement that any blood in the back of his Bronco would have
come from intravenous drug users or his having once slapped a prostitute, and why
he initially denied knowing Zunino. However, these topics were unlikely to
produce material evidence. No blood was ever found in Sprinkle’s Bronco—only
a stain that turned out to be soda. And as noted by the California Court of Appeal,
“the fact [that Sprinkle] slapped a prostitute in the past does little, if anything, to tie
him to this murder.” Similarly, that Sprinkle initially denied knowing Zunino
despite being told that they had attended high school together would have been
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immaterial in light of the overall strength of the prosecution’s case against Nuccio.
Sprinkle’s home and Bronco were searched soon after the murder took place, but
no evidence was ever uncovered. Nuccio’s Blazer’s tire tread marks were
“consistent with” the tread marks found on and around Zunino’s body, while
Sprinkle’s Bronco had tires inconsistent with those found at the crime scene.
Nuccio’s semen—not Sprinkle’s—was found in Zunino’s rectum. The California
Court of Appeal thus reasonably concluded that Sprinkle’s testimony would not
have been material or favorable to the defense such that Nuccio’s claim fails under
28 U.S.C. § 2254(d)(1).
2. Nuccio’s claim that the California Court of Appeal’s decision was based on
an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2) also fails.
Even assuming the court’s finding that the prosecutor had done “everything he was
supposed to do” to arrest Sprinkle was unreasonable, the court also reasonably
concluded that Sprinkle’s absence did not affect the trial court’s decision. The
court of appeal therefore did not “base” its decision on an unreasonable
determination of fact.
The judgment of the district court denying Nuccio’s habeas petition is
AFFIRMED.
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