Nathan Rivera v. Brian Cates

FILED NOT FOR PUBLICATION SEP 13 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NATHAN RIVERA, No. 22-55602 Petitioner-Appellant, D.C. No. 3:21-cv-01586-TWR-AGS v. BRIAN CATES, Warden, MEMORANDUM* Respondent-Appellee. Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding Argued and Submitted September 9, 2024 Pasadena, California Before: IKUTA, FRIEDLAND, and LEE, Circuit Judges. Petitioner Nathan Rivera appeals the district court’s denial of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254. We have jurisdiction under § 2253 and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  “Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review . . . because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010). Engaging in de novo review, we reject Rivera’s claim that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984). Rivera failed to demonstrate that he was prejudiced by his lawyer’s failure to renew a motion to exclude Jennifer Davidson’s testimony because the jury heard overwhelming evidence of Rivera’s guilt, including, among other things: Rivera’s prior acts of domestic violence against the murder victim (including testimony that Rivera held a knife to the victim’s throat on the day before the murder); physical evidence consistent with the victim having fought back during strangulation (including evidence of his DNA on the victim’s neck and fingernails and the victim’s DNA on Rivera’s right hand); and testimony that a neighbor had seen Rivera jump into a nearby idling truck that belonged to another neighbor, crash it through a gate, and speed away, moments before that neighbor discovered the victim’s body. In light of this evidence, Rivera has not demonstrated “a reasonable probability that, but for counsel’s [failure to renew her objection to Davidson’s testimony], the result of the proceeding would have been different.” Id. Because 2 we decide on this ground, we do not reach the question whether the state court’s adjudication of Rivera’s claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . . or . . . that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)–(2); Berghuis, 560 U.S. at 390. AFFIRMED. 3