United States v. 2020-06-25 | 18-16886 | KRISTOPHER ZIMMERMAN V. ISIDRO BACA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTOPHER MICHAEL ZIMMERMAN,

Petitioner-Appellant,

v.

ISIDRO BACA, Warden; et al.,

Respondents-Appellees.

No. 18-16886

D.C. No.
3:15-cv-00454-HDM-WGC

MEMORANDUM
*

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding

Argued and Submitted June 11, 2020
San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,
**
District Judge.
Kristopher Zimmerman, a Nevada state prisoner, appeals from the district
court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challenging his
conviction for attempted sexual assault. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. We affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED

JUN 25 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-16886
1. The district court properly found that the decision of the Nevada Supreme
Court rejecting Zimmerman’s claims that his state conviction violated the Ex Post
Facto Clause was not “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). The Nevada Supreme Court decision State v.
Barren makes clear that “some court always has jurisdiction over a criminal
defendant,” and thus in Zimmerman’s case an adult court had jurisdiction over him
from the time he turned twenty-one. 279 P.3d 182, 184 (Nev. 2012); see Nev. Rev.
Stat. §§ 62A.030(1)(b), 62B.330(1). Accordingly, at the time he was identified by
law enforcement as the likely offender, Zimmerman would have been subject to
the district court’s general grant of criminal jurisdiction even absent the 2009
amendment to Nev. Rev. Stat. § 62B.330. See 279 P.3d at 184. Zimmerman was
thus in the same position as he would have been in had the 2009 amendment not
been passed.
2. The state court’s conclusion that the five-year pre-arrest prosecution delay
did not violate Zimmerman’s due process rights was also not contrary to or an
unreasonable application of clearly established Supreme Court law. See 28 U.S.C.
§ 2254(d)(1). We defer to the state court’s factual determination that prosecutors
acted in good faith when they delayed prosecution. See id. § 2254(e)(1).
Considering the DNA evidence against Zimmerman, any prejudice to Zimmerman

3 18-16886
from the delay was minimal. The five-year delay thus did not deprive Zimmerman
of due process. See United States v. Lovasco, 431 U.S. 783, 790 (1977).
AFFIRMED.