Steve Kassab v. William D. Gore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KASSAB,
Petitioner-Appellant,
v.
WILLIAM D. GORE,
Respondent-Appellee.
No. 15-56191
D.C. No. 3:13-cv-03182-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Karen S. Crawford, Magistrate Judge, Presiding
Submitted August 3, 2016**
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Steve Mansour Kassab appeals from the district court’s denial of his habeas
petition seeking relief from his state misdemeanor conviction for providing drug
paraphernalia for use to smoke methamphetamine or cocaine. The district court
FILED
AUG 05 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 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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certified two issues for appeal: (1) whether the trial judge denied Kassab a fair trial
by limiting the testimony of his witness, Dr. Vomhoff, and (2) whether the
submission of an exhibit that referenced his prior conviction in violation of a pre-
trial order excluding evidence of the conviction denied him a fair trial. Because we
review Kassab’s case pursuant to AEDPA, he must show that the state court’s
decision was contrary to, or unreasonably applied, clearly established Federal law
or an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The Supreme
Court has explained that “[a] state court’s determination that a claim lacks merit
precluded federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). We affirm the
district court’s denial of Kassab’s petition.
1. Kassab’s request that we take judicial notice of certain documents is
denied. Federal Rule of Evidence 201 is permissive, not mandatory, and we
generally do not take judicial notice of facts presented for the first time on appeal.
Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011). Here, the
proffered documents were not presented to the district court, are not relevant to the
issues on appeal, and for many of them their assertions are subject to reasonable
dispute.
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2. Kassab has not shown that the trial court’s limitation of Dr. Vomhoff’s
testimony denied him a fair trial. The exclusion of evidence in a state trial will not
support federal habeas relief unless it denies the defendant his due process right to a
fair trial. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Alcala v. Woodford, 334
F.3d 862, 884 (9th Cir. 2003).
Kassab has not made such a showing. Dr. Vomhoff’s testimony was not
directly relevant to the charges against Kassab. The police officer’s testimony that
Dr. Vomhoff would have rebutted was rebutted by Kassab’s testimony as well as
the officer’s own testimony when recalled. Moreover, Kassab chose not to call Dr.
Vomhoff to testify as to the possible legal uses of the glassware, and there was
considerable other evidence that Kassab knew that the glassware he was selling
would be used to ingest illegal drugs.
3. Kassab has not shown that he was denied a fair trial by the submission of
Exhibit 7 with its reference to his prior conviction. Again, this claim is reviewed
under the AEDPA standard of review. For prosecutorial misconduct in a state trial
to support federal habeas relief it must be of sufficient significance as to result in
the denial of the defendant’s right to a fair trial. Greer v. Miller, 483 U.S. 756, 765
(1987).
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Here, the trial judge found that the submission of the unredacted exhibit was
inadvertent and instructed the jury to disregard the reference to Kassab’s prior
conviction. Moreover, the reference was more cumulative than revelational because
there was considerable other evidence that Kassab was well aware that his actions
were illegal (even though he argued that they should not be illegal). Kassab has not
shown that the trial court’s denial of a new trial based on the inadvertent submission
of Exhibit 7 was contrary to clearly established federal law or an unreasonable
determination of the facts, or that it is unreasonable to conclude that his right to a
fair trial was not compromised.
The district court’s denial of Kassab’s habeas petition is AFFIRMED.
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