Jason Green v. WARREN L. MONTGOMERY, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON GREEN,
Petitioner-Appellant,
v.
WARREN L. MONTGOMERY, Warden,
Respondent-Appellee.
No. 21-56166
D.C. No.
2:18-cv-06443-JLS-SHK
MEMORANDUM*
LYNETTE PENNINGTON,
Petitioner-Appellant,
v.
JANEL ESPINOZA, Acting Warden of the
Central California Women’s Facility;
DERRAL G. ADAMS, Warden,
Respondents-Appellees.
No. 21-56174
D.C. No.
2:17-cv-07004-JLS-SHK
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
FILED
MAY 31 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.

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Argued and Submitted March 8, 2023
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Jason Green and Lynette Pennington appeal the district court’s dismissals of
their habeas petitions, in which they argue that certain tactics employed by the
prosecution violated their rights to due process.
We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district
court’s decisions de novo and decide whether the state court’s decision falls afoul
of the standards set forth in § 2254(d). Van Lynn v. Farmon, 347 F.3d 735, 738
(9th Cir. 2003). We decide it does not, so we affirm.
As a preliminary matter, we reject Green and Pennington’s argument that the
California Court of Appeal’s decision “was based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2). The court did not base its
decision on a factual determination that “the prosecutor’s dismissal and refiling
was not motivated by the improper purpose of forum shopping” (emphasis added).
Rather, it decided as a matter of law that a defendant’s right to due process does
not prohibit the prosecution from forum shopping, “even if the purpose of the
refiling was to avoid an adverse ruling.”
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Next, Green and Pennington also fail to establish that the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). Their burden is heavy, as the state court decision must be
“so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Green and Pennington did not identify a Supreme Court decision clearly
holding that prosecution forum-shopping violates due process. The three Supreme
Court cases they cite recognized different aspects of a state prosecution that may
contravene due process: in Chambers v. Mississippi, it was state evidentiary rules
that arbitrarily excluded the confession of a true murderer, 410 U.S. 284, 302
(1973); in Donnelly v. DeChristoforo, misrepresentation of evidence by the
prosecution, 416 U.S. 637, 646 (1974); and in Lisenba v. California, the
prosecution’s use of a coerced confession, 314 U.S. 219, 236–37 (1941). But none
of them concerned prosecution forum-shopping. To the extent that Green and
Pennington cite Chambers and Lisenba for the proposition that a prosecutor’s
actions might offend due process even though permitted under state law, we agree
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but hold below that the state court’s decision is consistent with that clearly
established rule.
Without the support of a clearly on-point Supreme Court precedent, Green
and Pennington’s argument boils down to the claim that their cases fit the general
principle that prosecutorial misconduct violates due process when it “so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly, 416 U.S. at 643. But state courts are only required to extend
an abstract principle to a new scenario when the principle “so obvious[ly]” applies
“that there could be no ‘fairminded disagreement’ on the question.” White v.
Woodall, 572 U.S. 415, 427 (2014) (quoting Harrington, 562 U.S. at 103). Here,
we decide that fairminded jurists may disagree on whether the alleged misconduct
meets the Supreme Court’s demanding standard. Consequently, the state court’s
refusal to extend existing law does not constitute an unreasonable application of
federal law.
Lastly, Green and Pennington are mistaken in arguing that the California
Court of Appeal held that because the prosecution’s forum-shopping practice was
permitted by state law, it necessarily satisfied the federal Constitution’s due-
process requirement. This argument reads the state court’s statement out of
context. The court did decide that the prosecution complied with state law in
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refiling charges against Green and Pennington. Nevertheless, it also considered
whether the conduct violated their rights to due process under the federal
Constitution, and gave independent and adequate reasons for holding that it did
not.
AFFIRMED.
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