MEMORANDUM **
Petitioner Anthony Penton appeals the district courts denial of his habeas petition under 28 U.S.C. § 2254, raising seven claims. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we review the district courts decision de novo. Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). We affirm.
1
First, the state trial court did not err in imposing the upper term sentence based on its finding that Petitioners “prior convictions are numerous and of increasing seriousness.” Petitioner argues that the “narrow” prior conviction exception discussed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Cunningham v. California, 549 U.S. 270, 275, 288–89, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (“Apprendi claim”) does not apply to the state trial judges determination. But the Supreme Court did not specify the prior conviction exceptions precise contours, which we have subsequently recognized as a lack of clearly established law on its scope. See Kessee v. Mendoza-Powers, 574 F.3d 675, 676–77, 679 (9th Cir. 2009). And other courts have interpreted the prior conviction exception in such a way that comports with the state trial courts determination here. See, e.g., People v. Towne, 44 Cal.4th 63, 78 Cal.Rptr.3d 530, 186 P.3d 10, 16 (2008).
2
The state courts rejection of Petitioners Apprendi claim was not contrary to or an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
3
Second, the state courts rejection of Petitioners claim that the prosecutor suppressed allegedly exculpatory police reports was not objectively unreasonable. See 28 U.S.C. § 2254(d); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While Petitioner argues that the prosecutors untimely production of the reports materially impacted his defense, the state court reasonably determined that Petitioner already knew the information contained within the reports and could have presented it had he elected to take the stand. See Milke v. Ryan, 711 F.3d 998, 1017 (9th Cir. 2013). Petitioner already knew when he had reported his rental car as stolen and he already knew Thess Good, a friend of his discussed in one of the reports. Additionally, the jury heard multiple witnesses identify Petitioner as the culprit, and that Petitioner was linked to phone numbers that had made numerous calls in the same area as the crime, during the same time as the crime (and victims had observed that one of the perpetrators used a cell phone during the commission of the crime). The jury also learned that a search of Petitioners home revealed an identification card with Petitioners picture alongside the last name of the subscriber of one of the phone numbers that had made those many suspicious calls. Considering the substantial incriminating evidence presented at trial, and the fact that Petitioner chose not to pursue the information contained within the reports that he already knew, earlier disclosure of the reports would not have reasonably resulted in a different outcome. See Turner v. United States, ––– U.S. ––––, 137 S. Ct. 1885, 1893, 198 L.Ed.2d 443 (2017).
4
Third, the state courts exclusion of evidence pertaining to a stolen rental car was not contrary to or an unreasonable application of any clearly established Supreme Court precedent. See Nevada v. Jackson, 569 U.S. 505, 509, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013) (per curiam); United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). The state trial court only excluded statements that qualified as hearsay, and allowed Petitioner to testify on the topic if he so chose. And as discussed, limiting the admissibility of those statements to Petitioners testimony does not contradict or unreasonably apply Mitchell. See supra n.4.
5
But even if the state trial court unconstitutionally excluded hearsay evidence, the exclusion did not have substantial and injurious effect or influence in determining the jurys verdict—especially given that, for the reasons discussed above, “the States evidence of guilt was, if not overwhelming, certainly weighty.” Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
6
Indeed, Petitioners argument that the excluded evidence was “highly probative of the lack of a relationship between [Petitioner] and [his codefendant],” is belied by Petitioners own statement to the police that he drove his “friend” and co-defendant who he had known “for ․ a few weeks” to the store and left the co-defendant in his rental car with the keys in the ignition.
Fourth, the state court reasonably rejected Petitioners argument that testimony in a post-trial hearing, in the absence of Petitioners presence, did not violate Petitioners rights under the Confrontation Clause. There is no clearly established Supreme Court precedent extending the Confrontation Clause to post-trial hearings; indeed, the Supreme Court has repeatedly referred to the Confrontation Clause right as a trial right. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 52–53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). While Petitioner argues that the Confrontation Clause should apply in post-trial determinations of guilt, habeas review is not the appropriate place to extend Supreme Court precedent. Neither was the state courts rejection of this claim an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Even if confrontation rights apply in hearings adjudicating motions for new trials, the state court reasonably determined that the testimony at issue was only part of the reason the trial court denied his motion, which is a reasonable determination especially considering the weight of the evidence implicating Petitioner. As such, any alleged error did not have a substantial or injurious effect on the outcome of the proceeding. See Brecht, 507 U.S. at 637, 113 S.Ct. 1710.
Fifth, the state courts rejection of Petitioners attempt to collaterally attack a prior conviction due to the lack of appellate counsel was not contrary to or an unreasonable application of Lackawanna County District Attorney v. Coss, 532 U.S. 394, 404, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001); 28 U.S.C. § 2254(d)(1). Lackawanna explicitly delimited its exception to rights protected by the Sixth Amendment and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and “[t]he Sixth Amendment does not include any right to appeal.” Martinez v. Ct. of Appeal of Cal., Fourth App. Dist., 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Because Lackawanna does not clearly extend to appellate counsel, the state court reasonably rejected this claim. See Hooper v. Shinn, 985 F.3d 594, 614–15 (9th Cir. 2021).
Sixth, the state court did not unreasonably reject Petitioners ineffective assistance of appellate counsel claim. Petitioner fails to establish how his appellate counsels representation fell below an objective standard of reasonableness, or how the results of the proceeding would have been different had his appellate counsel raised claims that multiple courts have since rejected, or that any unraised claims were plainly stronger than the claims raised. See Davila v. Davis, ––– U.S. ––––, 137 S. Ct. 2058, 2067, 198 L.Ed.2d 603 (2017); Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner merely reincorporates the same arguments made throughout his briefings that we reject herein, and unpersuasively argues that the unraised claims were nonfrivolous. Cf. Davila, 137 S. Ct. at 2067 (“Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed.”).
Seventh, for the reasons stated herein, none of Petitioners alleged errors combine for a cumulative effect that is so prejudicial as to require reversal. See Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002).
Finally, we deny Petitioners pending motion to stay appellate proceedings as moot in lieu of this disposition. Petitioner requests a stay and order that the district court hold his petition in abeyance pending the resolution of his “forthcoming filing of an actual innocence claim in state court,” but has not indicated that he has initiated any such state court proceedings. A claim of actual innocence does not independently warrant federal habeas relief, Herrera v. Collins, 506 U.S. 390, 400, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), and Petitioner has not demonstrated how his proffered evidence strengthens his existing claims to the point that his arguments become potentially meritorious. Cf. Gonzalez v. Wong, 667 F.3d 965, 986 (9th Cir. 2011). Finally, the denial of his stay motion in federal court will not prevent him from pursuing his actual innocence claim in state court.
7
The district court is AFFIRMED, and Petitioners motion to stay is DENIED.
FOOTNOTES
1
. Because the parties are familiar with the facts, we recite them here only as necessary.
2
. The Supreme Court in Cunningham reiterated that the fact of a prior conviction remains an exception to Apprendi; it did not delineate the exceptions scope. See Cunningham, 549 U.S. at 274–75, 288–89, 127 S.Ct. 856 (2007). Cunningham therefore does not squarely address or clearly extend to Petitioners Apprendi claim. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
3
. Petitioners argument that the state trial judge unreasonably determined the facts pertaining to Petitioners sentencing fail because they are based on alleged errors of state law, which does not warrant habeas relief. Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam).
4
. By limiting the admissibility of certain evidence to Petitioners testimony, the state trial court did not contradict or misapply Mitchell v. United States, 526 U.S. 314, 327–28, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). Mitchell does not squarely address or clearly extend to the application of well-established evidence exclusion rules and the need for a defendants testimony to introduce otherwise-excluded evidence. See id. at 316–17, 27–28, 119 S.Ct. 1307; Moses, 555 F.3d at 754. Moreover, we have previously upheld a trial judges evidentiary ruling even when it meant that the admission of certain evidence required the requisite foundation, which could only occur through the defendants testimony. See Menendez v. Terhune, 422 F.3d 1012, 1030–31 (9th Cir. 2005).
5
. While Petitioner argues that the state trial court unreasonably excluded the evidence under the factors discussed in Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985), the Miller factors do not constitute clearly established Supreme Court precedent for the purposes of habeas relief under AEDPA. See Moses, 555 F.3d at 759.
6
. Neither did the state trial courts evidentiary ruling constitute an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). The state trial court reasoned that “[t]he timing [of the reporting] is unique only in that it puts in issue the credibility of [Petitioner] who obviously would be subject to cross-examination if he took the stand.” The timing of Petitioners reporting did not affect the admissibility of the excluded evidence.
7
. Because we deny Petitioners motion as moot in lieu of this disposition, we likewise deny Petitioners alternate request to allow Petitioner an evidentiary hearing before the district court as moot as well.