Marcus Borges v. DAVE DAVEY, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS BORGES,
Petitioner-Appellant,
v.
DAVE DAVEY, Warden,
Respondent-Appellee.
No. 13-57156
D.C. No.
2:12-cv-08157-CAS-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted July 5, 2016
Pasadena, California
Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON,** District
Judge.
California state prisoner Marcus Borges appeals the district court’s denial of
his petition for habeas corpus, in which he challenges his conviction for second-
degree robbery on the grounds that three adverse rulings by the trial court violated
FILED
JUL 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.

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his constitutional rights: first, the trial court’s sua sponte ruling limiting defense
counsel’s cross-examination of the victim during trial; second, the trial court’s
admission of testimony by the investigating officer that, in his opinion, the victim
was robbed and Borges was the robber; and third, the trial court’s denial of
Borges’s motion for a new trial, through which he sought to introduce a new
percipient witness who could purportedly testify to Borges’s innocence. The
district court denied Borges habeas relief on all three claims of constitutional error.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Applying the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we hold that the California Court of Appeal’s determination that
Borges’s Sixth Amendment right to cross-examine witnesses was not violated by
the trial court’s limitation on defense counsel’s questioning of the victim was
neither contrary to, nor an unreasonable application of, clearly established federal
law. A defendant’s right to present a complete defense, “a primary interest secured
by [which] is the right of cross-examination,” is well established. Davis v. Alaska,
415 U.S. 308, 315 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 418
(1965)); see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). However, it
is equally well established that trial courts may exclude evidence pursuant to state
rules of procedure without violating criminal defendants’ constitutional rights. See
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Van Arsdall, 475 U.S. at 679. Although we may feel differently were this case
presented to us on direct review, we must conclude that the California Court of
Appeal reasonably applied federal constitutional principles in holding that the trial
court’s restriction on defense counsel’s cross-examination of the primary witness,
based on the trial court’s belief that extended questioning was cumulative under the
California Evidence Code, did not infringe Borges’s constitutional rights.
2. We also find that the California Court of Appeal’s conclusion that
admitting testimony by the investigating officer that Borges committed the charged
robbery did not violate Borges’s constitutional right to have a jury decide his guilt
was reasonable in light of clearly established federal law. The erroneous
application of a state rule of evidence is not a sufficient basis for granting federal
habeas corpus relief unless the error rendered the trial fundamentally unfair.
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Because the Supreme Court has
never held that a defendant’s right to due process is violated when a witness gives
opinion testimony regarding the fact of the defendant’s guilt, the California Court
of Appeal’s rejection of Borges’s claim cannot have been contrary to, nor an
unreasonable application of, any clearly established Supreme Court law. See 28
U.S.C. § 2254(d)(1).
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3. Borges’s contention that the trial court misapplied state law in
denying his motion for a new trial is not cognizable on federal habeas review. See
Estelle, 502 U.S. at 67 (“[F]ederal habeas corpus relief does not lie for errors of
state law.” (citation omitted)). Nor does the proffered “new” testimony
conclusively prove Borges’s actual innocence, even if such a claim was available
to a non-capital habeas petitioner. See Bousley v. United States, 523 U.S. 614, 623
(1998).
AFFIRMED.
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