NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES DAVID GORDON, No. 20-15105

Petitioner-Appellant, D.C. No. 4:12-cv-00769-PJH

v.

MEMORANDUM*

JOE A. LIZARRAGA, Warden, Mule Creek State Prison,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted June 18, 2021 San Francisco, California

Before: M. SMITH and VANDYKE, Circuit Judges, and GORDON,** District Judge. Concurrence by Judge VANDYKE

Defendant Gordon was charged with, and convicted of, five counts in

connection with her physical and sexual violence against two victims, identified as

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation. JD1 and JD2. Ms. Gordon litigated numerous post-conviction claims in California

state court before filing her federal habeas petition containing twenty claims. The

district court denied the petition but granted a certificate of appealability on fifteen

of them. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the

parties are familiar with the facts, we do not repeat them here except where necessary

to add context to our ruling.

1. Gordon’s first claim is that her pretrial statements were introduced in

violation of her right to counsel under Massiah v. United States, 377 U.S. 201 (1964).

In this case, adversarial proceedings began on April 1, 2009 when the State filed

charges against Gordon. Before that date, the Sixth Amendment right to counsel had

not attached, so Massiah does not apply to Gordon’s statements elicited prior to that

date. As for the statements elicited during the interrogation on April 1, 2009, Ms.

Gordon waived her right to counsel when she spoke to Det. Elia after being read her

Miranda rights. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).

2. Gordon next claims that the statements in her April 1, 2009 interrogation

were introduced at trial in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

However, Ms. Gordon validly waived her Miranda rights in spite of her alleged

intoxication at the time of the interrogation. The Napa County Superior Court, in

state habeas proceedings after an evidentiary hearing, found that Ms. Gordon was

not intoxicated to the extent that her will was overborne. Ms. Gordon has not shown

2 by clear and convincing evidence that these factual findings are incorrect. See

Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989).

3. Third, Gordon contends that her pretrial statements were inadmissible due

to outrageous government conduct. The outrageous government conduct defense

justifies dismissal “only where the government’s conduct is ‘so grossly shocking and

so outrageous as to violate the universal sense of justice.’” United States v. Pedrin,

797 F.3d 792, 795–96 (9th Cir. 2015) (quoting United States v. Stinson, 647 F.3d

1196, 1209 (9th Cir. 2011)). The facts surrounding Ms. Gordon’s interrogation do

not satisfy this “extremely high” standard. See id. at 795 (quoting United States v.

Smith, 924 F.3d 889, 897 (9th Cir. 1992)).

4. Next, Gordon argues that her letters written from jail were introduced at

trial in violation of the Fifth Amendment. This claim fails because government

coercion is a gateway requirement for a Fifth Amendment violation. United States

v. Kelley, 953 F.3d 562, 565 (9th Cir. 1992). Ms. Gordon has not rebutted—by clear

and convincing evidence—the correctness of the state court’s factual determinations

that there was no government coercion and that the letters were written with full

competence and awareness. The introduction of these letters therefore did not

violate the Fifth Amendment.

5. Gordon also argues that the state habeas court contravened or unreasonably

applied clearly established federal law when it held that it was constitutional to admit

3 evidence of Gordon’s uncharged prior acts of sexual and domestic violence. But

“[o]ur precedent squarely forecloses” the argument that admission of propensity

evidence violates a defendant’s clearly established due process rights. Mejia v.

Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). The state court did not contravene or

unreasonably apply clearly established federal law in rejecting Ms. Gordon’s claim.

6. Gordon challenges the state habeas court’s rejection of her ineffective

assistance of trial counsel claims based on trial counsel’s (1) failure to object to

introduction of her pretrial statements; (2) failing to object to exclusion of

impeachment evidence for testifying victims; (3) failing to conduct an adequate

investigation to prepare for trial; (4) failing to litigate certain pretrial motions; and

(5) failing to present the reasonable-but-mistaken consent defense. The stated

objections and pretrial motions would have been futile, so counsel’s performance in

that regard does not satisfy the prejudice requirement for an ineffective assistance of

counsel claim pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984).

There is no clearly established federal right to introduce extrinsic evidence for

impeachment purposes. Nevada v. Jackson, 569 U.S. 505, 511 (2013). And the

numerous facts Ms. Gordon alleges trial counsel failed to unearth in investigation

are not sufficient to support an ineffective assistance claim because none

demonstrates Ms. Gordon’s factual innocence or undermines confidence in the

verdicts. Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). Furthermore,

4 Ms. Gordon’s trial counsel thoroughly presented her defense of reasonable-but-

mistaken belief that JD1 and JD2 consented to the sexual contact. The state court’s

determination was not unreasonable.

7. Gordon argues that her sentence constituted cruel and unusual punishment

pursuant to the Eighth Amendment. This claim fails because Gordon supports it

only with mitigation evidence, which would not have impacted the trial court’s

stated reasoning for the sentence it imposed. Gordon’s ineffective assistance of

counsel claims based on the alleged violation of the Eighth Amendment also fail

accordingly.

8. Next, Gordon asserts that the state habeas court contravened or

unreasonably applied clearly established federal law when it held that appellate

counsel was not constitutionally ineffective for failing to challenge admitted hearsay

on appeal. This claim fails because the state court held that the testimony was

properly admitted under state law. “[F]ederal habeas corpus relief does not lie for

errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation

marks and citation omitted).

9. Gordon argues that the state court contravened or unreasonably applied

clearly established federal law when it held that the State did not violate Brady v.

Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory evidence. The

prosecution failed in its affirmative obligation to turn over a police interview of JD1.

5 However, we decline to vacate Ms. Gordon’s conviction on Brady grounds because

the state court’s determination that the undisclosed evidence was cumulative of other

evidence introduced at trial that impugned JD1’s credibility and did not undermine

confidence in the outcome was not contrary to or an unreasonable application of

clearly established federal law. See Shelton v. Marshall, 796 F.3d 1075, 1089 (9th

Cir. 2015), amended on reh’g, 806 F.3d 1011 (9th Cir. 2015).

10. Finally, Gordon claims that her trial was unconstitutional due to

cumulative error. “Under traditional due process principles, cumulative error

warrants habeas relief only where the errors have so infected the trial with unfairness

as to make the resulting conviction a denial of due process.” Parle v. Runnels, 505

F.3d 922, 927 (9th Cir. 2007) (internal quotation marks omitted). Ms. Gordon’s

claims do not present errors that rise to this level.

The judgment of the district court is AFFIRMED.

6

FILED

Charles David Gordon v. Joe A. Lizarraga, No. 20-15105 JUN 28 2021 VANDYKE, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I generally agree with the majority’s memorandum disposition. I write

separately only to express my view that the video evidence that Gordon characterizes

under the Brady claim as exculpatory is not. As I see it, no reasonable jury would

deem the video of the interview with JD1, considered in its entirety, as exculpatory

or as impeaching JD1’s testimony. See United States v. Zuno-Arce, 44 F.3d 1420,

1426 (9th Cir. 1995), as amended (Feb. 13, 1995) (“This inference is too weak in

this case to amount to exculpatory evidence.”).