Edmund Y. Chein v. Richard Shumsky, Chief Probation Officer La County California State Attorney General

323 F.3d 748 Edmund Y. CHEIN, Petitioner-Appellant, v. Richard SHUMSKY, Chief Probation Officer LA County; California State Attorney General, Respondents-Appellees. No. 01-56320. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 2002. Filed March 14, 2003. Charles M. Sevilla, Cleary & Sevilla, San Diego, CA, for the petitioner-appellant. Brentford Ferriera (brief) and Matthew G. Monforton, Deputy District Attorneys, Los Angeles, CA, for the real party in interest, State of California. Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-05296-ABC. Before FERNANDEZ, RAWLINSON, Circuit Judges, and SHEA, * District Judge. Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge SHEA. OPINION RAWLINSON, Circuit Judge: 1 Edmund Chein ("Chein") appeals the district court's denial of his habeas petition filed pursuant to 28 U.S.C. § 2254 , challenging his conviction following a jury trial on three counts of perjury. 2 Chein asserts that he was deprived of his due process rights under law when: (1) the judge who presided over one of the…

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge SHEA.

OPINION

Edmund Chein (“Chein”) appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254 , chal *750 lenging his conviction following a jury trial on three counts of perjury.

Chein asserts that he was deprived of his due process rights under law when: (1) the judge who presided over one of the underlying civil trials testified in Chein’s perjury trial; and (2) the prosecutor repeatedly referred to the facts of the underlying case in violation of an express ruling by the court. Chein also contends that there was insufficient evidence to support the perjury convictions. Because Chein’s due process claims were proeedurally defaulted and there was sufficient evidence to support a finding of perjury as to one of the statements, we AFFIRM the district court’s dismissal of Chein’s habeas petition.

I. Background

Chein faced perjury charges as a result of his testimony in a personal injury trial and his response to an interrogatory in a different civil ease.

Count 1 of the Information charged Chein with testifying falsely that “he was a specialist in orthopedic…

Dissenting in part and concurring in part:

For Defendant Chein’s claims of insufficiency of evidence to sustain his conviction, I concur with the majority that the trial evidence as to Counts 1 and 4 was insufficient to support convictions for perjury. However, I dissent from the majority’s view of the sufficiency of the evidence on Count 2 and would reverse the district court’s denial of Chein’s petition for a writ of habeas corpus and remand to the district court with instructions to enter judgment granting a writ of habeas corpus directing the release from custody of Chein. This is surely the more desirable result for Dr. Chein but I find it necessary to also dissent on the following issue which would result in his being given a new trial, though one without a sitting judge testifying as an expert for the prosecution.

For Defendant Chein’s claims of due process violation — permitting a sitting Superior Court judge to testify as an expert for the prosecution in a criminal case and the misconduct of the prosecutor — I would reverse the finding of procedural default, and remand to the district court with instructions to enter a judgment granting a conditional Writ of Habeas…