FILED

NOT FOR PUBLICATION

JUN 17 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ANTHONY KENNEDY, No. 19-15704

Petitioner-Appellant, D.C. No. 4:16-cv-01686-YGR

v.

MEMORANDUM*

RON BROOMFIELD,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted June 15, 2021** San Francisco, California

Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.

Mark Kennedy, a California state prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 petition challenging his convictions for assault, battery and

false imprisonment. The case arose out of an altercation involving Kennedy,

* 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). Emmalyn Munjar, and Lester Chow. An earlier trial had resulted in mistrial as to

these charges.

We granted a certificate of appealability on only the claim of prosecutorial

misconduct. Kennedy alleges the prosecutor knowingly presented false testimony

by Munjar in violation of his due process rights clearly established in Napue v.

Illinois, 360 U.S. 264, 269 (1959). The state court ruled that, apart from the few

instances in which Munjar’s testimony was controverted by telephone records,

there was no knowing presentation of false evidence. The state court held that the

prosecutor fulfilled his duties to point out known inconsistencies to the jury, that

the defense counsel also made these inconsistencies clear, and that Munjar’s false

testimony did not materially prejudice Kennedy. The district court held the state

court decision was reasonable.

There were undoubtedly inconsistencies among Munjar’s statements to

police, her testimony at the preliminary hearing, her testimony at the first trial, and

her testimony in the second. The prosecutor adequately pointed them out to the

jury, however, and even observed that she was “not a credible person when it

comes to this particular event because she’s told so many different versions of

2 what happened.” The prosecutor did not withhold critical information from the

jury bearing on the witness’s credibility, as was the case in Napue.

This court must uphold the state court decision unless it is contrary to or

involves an unreasonable application of law clearly established by the Supreme

Court, or involves an unreasonable determination of facts. 28 U.S.C. § 2254(d).

The district court correctly ruled that this petitioner cannot meet that standard, and

we agree with the district court’s analysis of this claim when it concluded that the

decision of the California Court of Appeal was eminently reasonable.

AFFIRMED.

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