NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS J. HILL, No. 16-55137 Petitioner-Appellant, D.C. No. v. 8:15-cv-00399-JAK-KS

JOE A. LIZARRAGA, Warden, Respondent-Appellee. MEMORANDUM*

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted July 10, 2018 Pasadena, California

Before: FISHER,** WATFORD, and FRIEDLAND, Circuit Judges.

Petitioner Curtis Hill assaulted and robbed 77-year-old Cecil Warren, who

then slipped into a coma and was placed on life support. When Warren passed

away while still on life support four years later, Petitioner was convicted of felony

murder on the basis that pneumonia caused by Warren’s intubation led to his death.

See Cal. Penal Code §§ 187(a), 189. After Petitioner’s state conviction was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. affirmed on direct review, he filed a habeas petition in federal court. Petitioner

now raises three arguments on appeal from the district court’s dismissal of his

petition. We reject these arguments and AFFIRM.

First, it was not clearly unreasonable for the state court to conclude that it

was permissible under the Confrontation Clause for the state’s medical experts to

discuss the findings of a non-testifying neuropathologist during their testimony on

the cause of Warren’s death. Given the confusion engendered by the Supreme

Court’s fractured decision in Williams v. Illinois, 567 U.S. 50 (2012), “‘fairminded

jurists could disagree’ on the correctness” of the state court’s decision to allow

testimony discussing the non-testifying neuropathologist’s report. See Harrington

v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)); see also Williams, 567 U.S. at 141 (Kagan, J., dissenting)

(describing the holding of Williams as “to be frank—who knows what”).

Second, the district court did not err by declining to consider two new

medical expert reports that Petitioner submitted to the district court approximately

six months after filing his petition. Because the reports were filed without any

explanation of how or when Petitioner acquired them or of which claims they were

meant to support, the district court had no reason to believe that any claim based

on these reports would be either timely or exhausted. Even after the magistrate

judge expressly faulted Petitioner for failing to explain the circumstances

2 surrounding the reports or why he did not submit them earlier, Petitioner made no

mention of them in his objections to the magistrate judge’s Report and

Recommendations.1

Finally, Petitioner cannot show “that the interests of justice” required that

the district court appoint Petitioner counsel to pursue a claim based on the newly

submitted medical reports.2 See 18 U.S.C. § 3006A(a)(2). Even accepting

Petitioner’s argument that this case involves complex medical and procedural

issues, the district court refused to recognize any new claim based on the reports

because Petitioner did not explain the circumstances surrounding their acquisition

or belated filing—not because Petitioner was unable to untangle the legal issues in

this case.

AFFIRMED.

1 We note, however, that we are not opining on whether Petitioner might still be able to pursue an ineffective assistance of counsel claim—or any other claim supported by the medical reports—in a state court habeas proceeding. See In re Sanders, 981 P.2d 1038, 1042 (Cal. 1999) (explaining that California will “excuse delay” for “a litigant mounting a collateral challenge to a final criminal judgment” “on a showing of good cause”). 2 We have repeatedly held that appointment of counsel is discretionary “[u]nless an evidentiary hearing is required.” Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986); see also Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988). Petitioner does not suggest that an evidentiary hearing was necessary here, but instead argues that he was entitled to counsel to assist him with “effective discovery” under Rule 6(a) of the Rules Governing Section 2254 cases. Even assuming that Petitioner’s interpretation of that rule is correct, discovery should not have been necessary for Petitioner to be able to explain how he acquired the new medical reports.

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