FILED

NOT FOR PUBLICATION DEC 17 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

DUKESHANE TORRES PALK, No. 09-55977

Petitioner - Appellant, D.C. No. 2:04-cv-08571-MMM- CT v.

C. M. HARRISON, Warden, MEMORANDUM *

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding

Argued and Submitted December 10, 2010 Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

Duµeshane Palµ appeals the district court's denial of his petition for a writ of

habeas corpus. Palµ is currently incarcerated for crimes of domestic violence

against his ex-girlfriend, K.A. Palµ argues that the state court of appeal made

errors of fact and law in concluding that the trial court did not abuse its discretion

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. by withholding K.A.'s past medical records. Palµ argues also that the trial court

erred by failing to define a 'dating relationship' for the jury, necessary for a

domestic violence sentencing enhancement. The California State Court of Appeal

considered Palµ's claims regarding K.A.'s medical records but not the jury

instructions. We affirm.

We review de novo the district court's decision to grant or deny a 28 U.S.C.

y 2254 habeas petition. Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004). We

review findings of fact made by the district court for clear error. See Riley v.

Payne, 352 F.3d 1313, 1317 (9th Cir. 2003). Under the Antiterrorism and

Effective Death Penalty Act, a habeas petitioner whose claim was adjudicated on

the merits in state court is not entitled to relief in federal court unless it is

demonstrated that the state court's adjudication '(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.' 28 U.S.C. y 2254(d).

Before trial, Palµ's counsel requested that the court review K.A.'s medical

records for documents related to four specific areas. The state court of appeal

reviewed the documents and transcripts and found that the trial court did not

-2- improperly withhold requested impeachment documents. ER 494. The district

court identified a few documents that arguably fell under the purview of Palµ's

requested disclosure, but concluded that the state court of appeal's determination

was not unreasonable. ER 51. This factual finding by the district court was not

clearly erroneous, and Palµ does not dispute the state court of appeal's finding that

K.A.'s medical records contained no documents relevant to the four specifically

requested areas.

Instead, Palµ attempts to maneuver around the dearth of documents in the

specific areas he requested by arguing that the state court of appeal's conclusion

that the trial court did not abuse its discretion by withholding K.A.'s past medical

records violated clearly established federal law in two ways: (1) he was unable to

present a complete defense, and (2) he was unable to impeach K.A., in violation of

the Confrontation Clause. Neither argument is availing.

Palµ was able to present a complete defense. K.A.'s past medical records

would have contributed minimal, if any, probative value to Palµ's criminal

proceedings, and Palµ had sufficient information to present his 'new' theory at

trial: that K.A. was beaten by another ex-boyfriend and she inculpated Palµ as a

cover. The exclusion of evidence of third-party culpability, absent substantial

evidence tending to directly connect that person with the actual commission of the

-3- offense, or tangential evidence of something that may have happened at a different

time and place, does not constitute a due process violation. Walters v.

McCormicµ, 122 F.3d 1172, 1177 (9th Cir. 1997).

The withholding of K.A.'s medical records did not violate the Confrontation

Clause. Palµ overstates the evidence contained in K.A.'s past medical records;

nothing in them shows a bias on the part of K.A., and Palµ was not prohibited from

engaging in appropriate cross-examination.

The trial court's error in failing to define 'domestic violence' for the jury

was harmless. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). K.A. testified

that she and Palµ dated for almost a year. ER 109-10. K.A.'s grandmother

testified that K.A. and Palµ were dating. ER 189-90. K.A. told a responding

police officer that Palµ was her boyfriend. ER 206. During opening statements,

Palµ's counsel described one of the incidents between K.A. and Palµ as being

precipitated by Palµ's telling K.A. that he '[did not] want to be with her anymore.'

ER 106. Palµ did not contest that he had been dating or engaged in a dating

relationship with K.A. at any point during trial.

AFFIRMED.

-4-

FILED

Palµ v. Harrison, 09-55977 DEC 17 2010

MOLLY C. DWYER, CLERK

IKUTA, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

I concur in the result. Because Palµ's claims fail under de novo review, they

necessarily fail under AEDPA's more deferential standard. See Berghuis v.

Thompµins, 130 S. Ct. 2250, 2264 (2010).