United States v. 2012-11-19 | 09-17669 | JOSHUA GILMORE V. MATTHEW CATE | nonprecedential |…

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA MARK GILMORE, ) No. 09-17669
)
Petitioner – Appellant, ) D.C. No. 2:04-cv-02395-GEB-KJM
)
v. ) MEMORANDUM*
)
MATTHEW CATE, )
)
Respondent – Appellee. )
)
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted November 8, 2012 **
San Francisco, California
Before: FARRIS, FERNANDEZ, and BYBEE, Circuit Judges.
Joshua Gilmore appeals the district court’s denial of his petition for a writ of
habeas corpus. See 28 U.S.C. § 2254. We affirm.
Gilmore asserts that the district court erred when it denied his claim that trial
FILED
NOV 19 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984).
2 See Perry v. New Hampshire, __ U.S. __, __, 132 S. Ct. 716, 720, 181 L.
Ed. 2d 694 (2012).
3 See Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770, 786, 178 L. Ed.
2d 624 (2011); Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149,
158 L. Ed. 2d 938 (2004).
4 See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L.
Ed. 2d 140 (1977).
5 See Perry, __ U.S. at __ & n.5, 132 S. Ct. at 724–25 & n.5; Neil v. Biggers,
409 U.S. 188, 198–99, 93 S. Ct. 375, 381–82, 34 L. Ed. 2d 401 (1972).
6 See Knowles v. Mirzayance, 556 U.S. 111, 121–22 & n.3, 129 S. Ct. 1411,
1419 & n.3, 173 L. Ed. 2d 251 (2009); see also Kimmelman v. Morrison, 477 U.S.
365, 382, 106 S. Ct. 2574, 2586–87, 91 L. Ed. 2d 305 (1986).
2
counsel was ineffective1 because he failed to move to suppress the testimony 2 of
the victim, who had suffered an unprovoked and brutal assault that caused
significant brain injuries. We disagree. On this record, we are satisfied that a
fairminded jurist3 could determine that the victim’s testimony was reliable4 and
was not tainted by circumstances that would render it otherwise. 5 On that basis,
fairminded jurists could also determine that counsel was not ineffective when he
failed to pursue what would have been an unmeritorious motion to preclude the
witness from testifying.6 We also note that evidence of the victim’s difficulties
was placed before the jury. So, too, was testimony from a psychiatrist who had

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7 See Harrington, __ U.S. at __, 131 S. Ct. at 786; Lockyer v. Andrade, 538
U.S. 63, 75, 123 S. Ct. 1166, 1174, 155 L. Ed. 2d 144 (2003).
8 Gilmore also seeks to argue a question on which no Certificate of
Appealability has issued. See 28 U.S.C. § 2253(c)(1), (2); 9th Cir. R. 22-1(e). He
asserts that he was denied due process when the jury learned that accomplices, who
were testifying against him, had pled guilty, and the trial court did not provide the
jury with any limiting instruction as to consideration of this testimony. We have
reviewed his claim, and find it does not meet the standard that justifies granting a
Certificate of Appealability. See Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S.
Ct. 1595, 1603–04, 146 L. Ed. 2d 542 (2000). We, therefore, decline to take up the
uncertified issue. See Haney v. Adams, 641 F.3d 1168, 1169 n.1 (9th Cir. 2011).
3
expertise regarding the problems inherent in eyewitness identification. We are
unable to say that the state court’s determination was unreasonable; 7 the district
court did not err.8
AFFIRMED.

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