Benjamin Flournoy, Jr. v. Larry Small
681 F.3d 1000
9th Cir.2012Background
- Flournoy was convicted in California of forcible rape and assault with intent to commit rape and sentenced to 25-to-life plus enhancements.
- At trial, Rogala testified about DNA matches and relied on Dutra's reports; defense did not object to Rogala's testimony.
- Rogala testified based on Dutra’s work; population frequency and Y-chromosome tests were admitted as part of lab evidence.
- Defense argued the sex could have been consensual; nurse testified abrasions were consistent with friction but could not prove lack of consent.
- California Court of Appeal upheld admissions; federal habeas proceedings followed, with the district court denying relief and issuing COA on Confrontation Clause and ineffective assistance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause: Rogala testimony admissibility | Flournoy contends Rogala’s testimony violated Crawford by relying on others’ reports. | State court properly admitted as business records after reviewer qualification; Crawford not controlling. | Not a Confrontation Clause violation; no clearly established federal law foreclosing this testimony. |
| Ineffective assistance: failure to object on Confrontation Clause | Failure to object constituted deficient performance prejudicing outcome. | Objection would have been overruled; no prejudice from admission. | No reasonable probability the result would be different; performance not deficient. |
| Uncertified ineffective assistance claim for expert Dr. Slaughter | Failure to call Dr. Slaughter was ineffective assistance. | Tactical decision; not subject to a successful habeas claim. | Certificate of appealability denied on this uncertified claim. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial out-of-court statements barred absent/unavailability cross-exam)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (lab reports testimonial; business records exception not sufficient)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (concurring opinion identifies unresolved Confrontation Clause questions)
- Harrington v. Richter, 131 S. Ct. 770 (U.S. 2011) (AEDPA deference; 'unreasonable application' standard)
- Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (defining clearly established federal law for AEDPA review)
- Greene v. Fisher, 132 S. Ct. 38 (U.S. 2011) (clarifies Hill/Strickland standards under AEDPA)