Darryl Burghardt v. Tammy L. Campbell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL BURGHARDT,
Petitioner-Appellant,
v.
TAMMY L. CAMPBELL,
Respondent-Appellee.
No. 21-56183
D.C. No.
2:14-cv-04677-JAK-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted June 28, 2023**
Pasadena, California
Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.
Darryl Burghardt appeals the district court’s denial of his petition for a writ
of habeas corpus. We have jurisdiction, see 28 U.S.C. §§ 1291, 2253(a), and
affirm.
FILED
JUN 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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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The district court correctly determined that the California Supreme Court’s
2020 summary denial of Burghardt’s petition for state habeas relief, was an
adjudication on the merits and that the deferential standard of review set forth in 28
U.S.C. § 2254(d) applied.1 See Harrington v. Richter, 562 U.S. 86, 101 (2011).
Respondent identified “strong evidence” to rebut the presumption that the Supreme
Court’s “silence implie[d] consent” with the lower court’s reasoning, here the Los
Angeles County Superior Court’s 2019 denial on procedural grounds. Ylst v.
Nunnemaker, 501 U.S. 797, 804 (1991). The record before the Supreme Court
clearly showed that Burghardt’s petition for state habeas relief asserted different
claims than those raised on direct appeal and that the Superior Court misread
Burghardt’s petition to make an obviously incorrect factual finding on that point.
See Wilson v. Sellers, 138 S. Ct. 1188, 1196 (2018). The Supreme Court could not
reasonably have adopted the Superior Court’s reasoning in light of the petition and
memorandum Burghardt filed with the Supreme Court. See Kernan v. Hinojosa,
578 U.S. 412, 415 (2016) (per curiam).
1 Because the last reasoned decision addressing the claims Burghardt’s
federal habeas petition raises was the Superior Court’s 2019 decision, the district
court erred in looking through to the Superior Court’s 2013 decision with respect
to some of Burghardt’s federal claims. See Barker v. Fleming, 423 F.3d 1085,
1091, 1093 (9th Cir. 2005).
2

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Burghardt also raises three uncertified issues on appeal. We construe his
brief as a motion to expand the certificate of appealability (COA) to include these
three claims. See Ninth Cir. Ct. R. 22-1(e); Valerio v. Crawford, 306 F.3d 742,
772–73 (9th Cir. 2002) (en banc). We deny the request because Burghardt fails to
“demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (citation omitted).
AFFIRMED.
3

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