Adrian C. Frasure v. Robert G. Borg and John K. Van Kamp

892 F.2d 82 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Adrian C. FRASURE, Petitioner-Appellant, v. Robert G. BORG and John K. Van Kamp, Respondents-Appellees. No. 88-15390. United States Court of Appeals, Ninth Circuit. Submitted July 25, 1989.* Decided Dec. 19, 1989. Before BROWNING, KOZINSKI and RYMER, Circuit Judges. — 1 — MEMORANDUM** — 2 — After being convicted of rape, appellant moved for a new trial on the basis of newly discovered evidence. The trial court held a hearing and subsequently denied the motion. The state court of appeal affirmed, and the supreme court denied the petition for review. — 3 — Appellant then petitioned for a writ of habeas corpus in federal district court. The court denied the petition, and appellant claims that the denial was an abuse of discretion. — 4 — The district court had no authority to interfere with the state court's decision to deny appellant's motion, unless appellant showed that the state court completely disregarded "that fundamental fairness essential to the very concept of justice." Pike v. Dickson, 323 F.2d 856, 860 (9th Cir.1963). Appellant did not present any evidence showing a denial of due process. The magistrate examined the state court's record and found that the trial judge gave appellant's motion a fair hearing and full consideration. The magistrate correctly stated, "[t]he trial judge was in the best position to weigh the victim's sworn testimony against the affidavits by petitioner's attorney and the secretary which described the victim's recantation." The district court adopted the magistrate's recommendation and denied appellant's petition. We affirm. — 5 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34.4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3