Hayes v. Ayers

аnd to claim the FLPMA regarding ment HAYES, Petitioner- Royal Kenneth court to the district claim remand Appellant, in the under Chevron further consideration first instance.9 v. Conclusion

IV. Quentin AYERS, of L. San Robert Prison, Respondent- State and the NEPA both BLM violated Appellee. grant court’s the district affirm We ESA. of Plaintiffs favor summary judgment No. 07-99014. claims, dis affirm the and we these as to enjoin injunction permanent

trict court’s Appeals, United States Court See Regulations.10 BLM’s ing the Ninth Circuit. (“It Coal., at 1034 413 F.3d Wash. Toxics enjoin agen a court can is well-settled 2010. Argued and Submitted March of section completion cy pending action 7, 2011. Filed Jan. Legal 7(a)(2) Biodiversity requirements.”); 1166, 1177 309 F.3d Badgley, und. v. Fo (9th Cir.2002) that “effectuat (explaining passing intent [in clear

ing Congress’ injunction” of an issuance required ESA] 193-95, Hill, v. (citing TVA (1978))).11 L.Ed.2d 117 failed to consid court Because the district claim under FLPMA er Plaintiffs’ deference set and with the framework Chevron, the district we vacate forth fa summary judgment in grant court’s claim. of Plaintiffs on this vor part; VACATED AFFIRMED part; and REMANDED. their costs

Plaintiffs shall recover appeal. scope district cerning nature and Although the FLPMA issue to

9. we remand consideration, is, therefore, we waived. injunctive relief court for further court's the district possibility See, one or Valley Kempt- do not foreclose e.g., Yosemite Friends of argue parties may Cir.2008). that the case or home, (9th both 520 F.3d The district court is FLPMA issue is moot. argu- any consider such free on remand to court, however, free remains 11. The district ment. necessary to the any modifications make warranted, injunction, after it addresses if challenge scope of Intervenors do not claim on remand. FLPMA Plaintiffs's argument appeal. Any con- injunction on FLETCHER, Before: BETTY B. CLIFTON, RICHARD R. and CARLOS BEA, T. Judges. Circuit Opinion CLIFTON; by Judge Dissent by Judge B. FLETCHER.

OPINION

CLIFTON, Circuit Judge:

Royal Kenneth was convicted and sentenced to death a California state court for the 1981 murders of Lauren de Laet and Donald MaeVicar. On appeal from the district court’s denial his habe- corpus as petition, presents he eight claims error, all guilt phase related (1) his trial. The claims concern the trial court’s denial of his motion for change of venue alleged based on pretrial adverse publicity; the admission hearsay evi- regarding dence a firearms conviction of allegedly the man who delivered the mur- (3) Hayes; der weapon to trial court’s refusal to a declare mistrial following a by statement during a witness her testimo- ny that had Hayes she heard that had $25,000 killed; (4) offered to have her trial permit Hayes court’s refusal to to call the attorney of another to testify witness about communications he had with his client that allegedly impeached would have (5) her testimony; prosecutor’s alleged testimony by failure to correct false (6) witness; same security measures taken (7) trial; during years the eleven passed Hayes’s between conviction and the filing of opening appeal his brief on direct CA, Multhaup, Valley, Eric S. Mill for Court; to the California and appellant. alleged prejudice cumulative of the above errors. We affirm the district Carter, Lloyd Deputy Attorney G. Gen- denial all of court’s of his claims. eral, Fresno, CA, for the appellee. Background

I. of December Donald MaeVicar sought buy and Lauren Laet to de cocaine Hayes. presence from In the of de Laet Hayes charged and with Weller, accom- arrested Hayes’s one of and Diane him, murder. against later testified plices who $160,000 in to- Hayes cash gave MacVicar proceedings, After in- lengthy pretrial $250,000 cocaine. payment for a

wards cluding Hayes an motion unsuccessful in a the cocaine to deliver Hayes was venue, Hayes went to trial change for a of Cruz, in Santa California. location secluded December County in Santa Cruz on Hayes sepa- told her Weller testified received immuni- 1984. Garcia and Weller him to accompany to rately that she was ty against Hayes. jury The testifying for and de Laet. to kill MacVicar Santa Cruz ultimately Hayes of the convicted first- Laet, de degree and murders MacVicar 29, 1981, later, days on December Two imprisonment, and also of assault false MacVicar, Weller, Laet and de Hayes, possession a and deadly weapon, with Cruz, they met Deb- where drove to Santa separate cocaine on conduct before based shop. doughnut group a bie Garcia multiрle-mur- arrest. a his It found true car and drove to an isolat- got into Garcia’s allegation special-circumstance der and an woods, near two shallow ed area in the personally had allegation that used dug had earlier that Garcia holes a firearm the murders. The to commit Garcia, request. who disavowed penalty a jury agree was unable to on knowledge Hayes’s plan any advance the murder convictions. Laet, kill de claimed that and MacVicar the holes would be used to Hayes told her Hayes again change moved for ven- had as used similar packages, hide ue, and the transferred to case was Stanis- past. holes in the penalty laus County for retrial phase. May On returned testimony by According Weller death, and the penalty verdict of court Garcia, Hayes then instructed Weller 8,1986. August judgment entered MacVicar de Laet. wait in the car with Garcia, He into the woods walked appeal, On direct California Su out” loca- purportedly to “check the exact judgment the preme Court affirmed the cocaine ex- tion where would be Hayes in decision against published a filed returned ten min- changed. Garcia about 23, People v. Hayes, December 1999. MacVicar, retrieve whom she utes later to 211, 1211, Cal.Rptr.2d 21 Cal.4th Hayes waiting. Hayes led to where was (Cal.1999). ap P.2d 645 this direct While to frisk MacVicar. As MacVi- told Garcia a peal pending, Hayes petitiоn filed searched, car a against leaned tree be a in the corpus for writ of habeas Califor single him a to the Hayes killed shot Court, the court Supreme nia which denied then de back of his head. Garcia retrieved explanation. further on the merits without car, Hayes her Laet from the and shot Supreme The United States Court denied head, killing in the her. twice Hayes Hayes’s petition for certiorari. v. 431, 148 980, 121 California, 531 U.S. later, Nearly two months a mushroom (2000). L.Ed.2d 438 fragments later hunter discovered of what skull, Hayes timely petition Laet’s filed a turned out to be de and law then began corpus On writ of under 28 investigate. enforcement habeas U.S.C. 18, 1982, Garcia, § in for her life the Northern District Califor- fearing March granted summary nia. The safety family, of her informed district court and for murders, all judgment respondent on police including about the for the Weller, Hayes’s petition claims in entered Hayes, involvement of and herself. judgment denying petition on June investigation covered the and eventual Hayes timely criminal appeal. proceedings. filed this The coverage media

included descriptions of the victims’ re- II. Discussion found; mains as Hayes’s were crimi- history nal in Oregon Minnesota, in- Hayes eight raises claims of error cluding the fact that he had been twice guilt phase related of his trial. As (once acquitted of murder because he was Hayes petition filed his habeas guilty by found not insanity); reason of Penalty Antiterrorism and Effective Dеath Hayes’s commitment to and escape from a (AEDPA) governs Hayes’s Act of 1996 ha hospital; mental Garcia and Weller’s de- Garceau, petition, beas see Woodford scriptions Hayes of how shot MacVicar and de Laet and removed their heads and (2003), L.Ed.2d 363 and we review hands; and passed the fact that Weller petition denial of his de novo. Tilcock v. polygraph test. (9th Cir.2008). Budge, 538 F.3d AEDPA, petition Under The trial court challenging Hayes’s denied motion without granted prejudice state court conviction will not March of be noting to, anticipated that the contrary delay unless the decision “was before his trial of, would diminish application involved an unreasonable the likelihood that he would be unable clearly law, to receive a fair trial in established Federal as deter Santa County. Cruz mined Supreme Court of the United 2254(d)(1). § States.” 28 U.S.C. We Hayes renewed and supplemented his against measure each of claims change-of-venue motion four times after this standard. began voir dire in August of 1984. Each time, he documented additional press cov-

A. Denial Change Venue erage since his previous filing. sup- Hayes argues first that the guilt phase plementary materials included articles de- of his trial should have crying been moved out of the cost and inefficiency of the County Santa Cruz because of adverse trial and that of another murder defendant, (“The pretrial publicity. Carpenter He contends that David Trail- Killer”), side state court’s denial of whose trial had change recently his of venue been moved out of prejudicial County, motion the face of Santa Cruz media and cov- erage Hayes’s jailhouse coverage marriage him process denied due to a con- former nun. finally The court clearly travention of denied established 3, renewed motion on precedent. December Court 1984, shortly before the prosecution com- Hayes initially change moved for of ven- menced its case-in-chief. 25, February ue on 1983. He submitted evidence of media coverage of his case in The Sixth and Fourteenth County. Santa Cruz The Santa Cruz Sen- “guarantee[ Amendments to the ] criminal ran tinel 37 articles about the case be- ly accused a fair trial panel impar 1982, February tial, tween Dowd, when the remains of jurors.” ‘indifferent’ Irvin v. found, early 717, 722, 1639, victims were first and 366 U.S. 81 S.Ct. 6 L.Ed.2d 1983, (1961). January Hayes when pleaded not 751 When a trial court is “unable guilty. The Mercury-News pub- San Jose impartial jury seat an because of preju lished 30 articles about the case in that pretrial publicity dicial or an inflamed time. Other Northern California newspa- community ... atmosphere[,] process due pers and television and radio stations requires grant also that the trial court defen-

508 Stuart, 539, 554, 427 change of venue.” Ass’n v. U.S. 96 S.Ct. motion

dant’s (9th (1976)) (citation 1354, 2791, 49 L.Ed.2d and Pulley, F.2d 1361 683 Harris v. 885 Cir.1988) Louisiana, omitted)). quotation 373 The (citing v. internal marks Rideau 1417, presumed is the prejudice 83 10 L.Ed.2d doctrine U.S. S.Ct. (1963)). of three decisions product Supreme Court 663 Louisiana, the 1960’s: 373 from Rideau v. circuit, In have identi this we 723, 1417, 83 S.Ct. 10 L.Ed.2d 663 U.S. types prejudice fied “two different 532, (1963), Texas, Estes v. U.S. 85 381 transfer venue: support of motion to (1965), 1628, 14 L.Ed.2d 543 and S.Ct. v. or actual.” States presumed United Maxwell, Sheppard v. 86 384 U.S. (9th Cir.1996). Sherwood, 98 F.3d (1966). 1507, 16 S.Ct. L.Ed.2d 600 See with a fair-trial Interference defendant’s Skilling, 130 S.Ct. at 2913-15. presumed “is the record dem when precedents, Two of these three Estes community where the onstrates have Sheppard, application and little here prejudi trial was held saturated with because concern instances where the inflammatory publicity cial and media significantly tri- media interfered with the Harris, at about the crime.” 885 F.2d id. at n. 14 (indicating al itself. See prejudice, Actual on the other 1361. Sheppard that reliance on Estes hand, exists when dire reveals that voir “misplaced” coverage where did not news jury ‍‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌‌​​​​‌​​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‍pool partiality “actual harbors empaneled, influence the after it was hostility [against the defendant] [can because “those cases involved media inter- laid aside.” at be Id. not] proceedings ference courtroom dur- two-pronged Supreme applied Court trial.”). ing the denial of Sheppard, analytical approach in a case it decided at arose process significant part due from Skilling its last the end of term. See atmosphere” press the “carnival that the States, --, S.Ct. United U.S. at trial. Sheppard, created See (сon 2896, 2907, 177 L.Ed.2d 619 1507; at see also id. first, sidering, pretrial publicity whether (“[B]edlam reigned 86 S.Ct. 1507 at the community hostility pre established a during courthouse the trial and newsmen juror sumption of and then prejudice, practically took over entire court- jury). actual whether bias infected the room.”). coverage Pretrial news alone did Skilling synthesizes illuminates and infringe upon Sheppard’s process due upon earlier Court decisions despite rights, pub- “months virulent [of] Hayes relies. plain which It makes licity.” Skilling, (citing presumed neither nor actual prejudice 1507) Sheppard, 384 U.S. at prejudice arising coverage and from news (alternation Similarly, original). popular County sentiment in Santa Cruz Estes, reporting “the media’s overzealous entitled to a of venue. change ... disruption’ efforts ‘led to considerable ‘judicial serenity and denied and calm Prejudice 1. Presumptive ” [Billie which Sol was entitled.’ Estes] presumption “A prejudice” of be Estes, 536, (quoting at Id. 381 U.S. 85 press of adverse coverage cause “attends (alteration 1628) in original). S.Ct. Skilling, the extreme 130 case.” 2915; Harris, case, contrast, at see F.2d at S.Ct. also 885 this all of the (“The presumed principle coverage Hayes that in prejudice news marshaled rarely applicable for an support change and is reserved of his of venue motion (citing extreme situation.” Neb. Press the jury empaneled. occurred before any Hayes allege significant did not dis- of the jury.” members of the Id. at prоceedings by of his trial ruption the 83 S.Ct. 1417. reopen He did file a motion to

media. voir While the small size of Santa Cruz days jury after the was empaneled dire (about 190,000 County people at the time newspaper covering of two articles because motion) of weighs in Hayes’s fa- opening days prosecution’s the case. vor, Skilling, see 130 S.Ct. at the suggested But he never these two press coverage at issue in this case did not primarily factual accounts of the articles— vivid, include “the kind of unforgettable any trial’s commencement—had effect on information” that viewers of Rideau’s con- jury or proceedings. They the the certain- fession exposed were to. Id. 2916. Al- ly approach disruption did not the level of though the stories about were un- supported a presumption prejudice of in flattering and some instances included in Sheppard. Estes and evidence, “they inadmissible contained no confession or other blatantly prejudicial open possibility Rideau leaves the information of the type readers or viewers presumptive prejudice based exclusively could reasonably be expected to shut pretrial publicity, on but that case is en- sight.” from Id. 2916. “No evidence of tirely distinguishable from happened what smoking-gun variety the invited prejudg- here. Wilbert Rideau robbed a bank ment of culpability.” his Id. town, kidnaped small Louisiana three bank Moreover, publicity Hayes complains employees, and killed one them. Ri- immediately of did not precede his trial as deau, 723-24, 373 U.S. at 83 S.Ct. 1417. the television broadcasts did in Rideau. consent, knowledge Without Rideau’s Supreme The Court repeatedly has recog- present, police and without counsel filmed nized that the passage significant time interrogation an of Rideau in which he press between adverse coverage and a de- confessed. Id. at S.Ct. fendant’s trial can have “a profound effect filmed confession was broadcast on televi- and, on community important, more times, sion three within weeks of Rideau’s jury, softening or effacing opinion.” trial, ranging to audiences in size from Yount, Patton v. 24,000 53,000 people. The parish Id. S.Ct. 81 L.Ed.2d (change from which Rideau’s was drawn had constitutionally venue not required 150,000 total population of about people. where “extensive publicity adverse and the Id. Rideau was convicted after the trial community’s outrage sense of were at their motion, court change-of-venue denied his height” years four before the defendant’s Supreme but Court reversed. The trial); Skilling, see also 130 S.Ct. at 2916 that, Court concluded “to the tens of thou- (no presumed prejudice where “the decibel of people sands who saw and heard” Ri- level of media attention diminished some- “personally deau confessing detail to the years what” in the four between Enron’s crimes with which he was later to be bankruptcy and former executive Jeffrey charged,” interrogatiоn very “in a real trial). Skilling’s sense was Rideau’s trial —at which he pleaded guilty to murder.” Id. at Patton v. Yount involved circumstances 1417. Deeming proceedings closer to those in this case. The publicity formality” followed “a hollow under the potential prejudice in that case id., circumstances, great Court reversed were at least as as were case, pausing particular- “without to examine a yet rejected Court transcript ized of the voir right dire examination Yount’s claim that his to a fair trial 510 Hayes’s jury was selected late 1984. Yount was tried and violated.

had been long of time was not as as the killing period That degree murder convicted of first passed that Skill- four-year periods both student. high school year-old an 18 female Yount, years and but the two ing by the state was set aside That conviction impact of apparently long enough for the that he had ground court on the supreme press coverage dissipate. initial notice of his given proper not been Arizona, attorney Miranda v. an under judge prelimi The trial based his 1602, 16 L.Ed.2d 694 Hayes’s change-of-venue of nary denial (1966), was remanded for a and his case that perception motion on his the consider coverage reported not trial. Press new Hayes’s trial would delay able before allow facts of the crime but also Yount’s community to cool to time for sentiment confession, tempo prior plea his of prior point possible. that a fair trial would be insanity, conviction for the rary and his issue, pretrial publicity ‘pri at “When That very same murder. Id. at 1029. of the trial mary judgment reliance on the prejudicial as as the coverage was least be [especially] good court makes sense’ Hayes’s ac reports previous of trials and judge cause the ‘sits the locale where publicized that were in this case. quittals publicity is said to have had its effect’ publicity prior Yet even of an inadmissible may base her evaluation on her ‘own not to a fair conviction was held foreclose perception depth of the and extent of news ” trial in Yount. might juror.’ that influence a stories Skilling, (quoting that even 130 at 2918 The Court reached conclusion S.Ct. 415, 427, Virginia, that all but 2 of members 111 noting while Mu’Min U.S. (1991)) (alter 1899, 114 panel of the venire for Yount’s trial who S.Ct. L.Ed.2d 493 questioned acknowledged they original). nation were case, had heard about the and that 126 of press coverage The in this case cannot “ (77%) they car- them admitted would inflam- ‘barrage be characterized as of ry opinion jury an into the box based on matory publicity immediately prior to tri- pre-existing knowledge of the case. Id. al,’ amounting ‘huge to a ... wave of ” publici- has not that the established Patton, public passion’ against Hayes. ty preceding greater nega- his trial had a (quoting U.S. S.Ct. 2885 impact than that held in Yount to be tive Florida, Murphy v. U.S. insufficient to establish a violation of due 2031, 44 L.Ed.2d 589 and Ir- process. 1639). vin, 366 U.S. аt The pretrial justi- media attention alone cannot judge presided

The who over fy presumption prejudice of in this case. trial concluded that he was satisfied jurors’ regarding “statements either the Prejudice 2. Actual they limited amount publicity have exposed been to or the fact that will circumstances are not so Where found, disregard it.” presumption As the district court extreme as to warrant publicity prejudice, “few who did recall the initial we must still consider whether community outrage anything nonprej- publicity remembered other than resulted actually prejudiced udicial ... in a that was facts and few were aware prior acquittals.” against inquiry Petitioner’s homicide the defendant. This focus Hayes points to es the nature and extent of the voir dire publicity bulk jurors’ February prospective occurred between of 1982 and examination and re January years sponses Skilling, about two before to it. 130 S.Ct. at See

511 if insanity task is to “determine the reason of verdict in prior 2917-23. Our the Oregon prosecution. jurors partiality demonstrated actual or hostility that could [toward defendant] 1251, Hayes, 21 Cal.4th at 91 Cal.Rptr.2d Harris, laid aside.” 885 F.2d at not be 211, 989 P.2d 645. Even a prospective ju where displays prior knowledge ror some of the dire examination this case Voir case, facts and issues involved a it is his extensive, occurring period

was over a of ability “lay impression aside his or opin filling more than two months and over ion and render a verdict based on the It pages reporter’s transcripts. of presented evidence in court” that cru approaching revealed no bias even level Irvin, 723, cial. at 81 S.Ct. 1639. change of un require that would venue may give weight,” We “little id. at By Supreme der the Court’s decisions. prospective juror’s to a assur calculation, prospec own 35 of 277 of impartiality general ances “where the (13%) jurors were excused because of tive atmosphere in the community or court knowledge pretrial publicity. of In their sufficiently room is inflammatory.” Mur Florida, however, Murphy v. the excusal phy, But, at U.S. 95 S.Ct. 2031. (26%) having of 20 of 78 veniremen above, explained as the circumstances sur guilt clearer prejudged defendant’s —a rounding Hayes’s trial were “not at all of than partiality demonstration of mere variety.” Id. Voir dire confirmed that “suggest! knowledge publicity of ] —did “largely factual” coverage news community poisoned with sentiment so mostly forgotten, disregarded, case was against impeach as to the indif petitioner Hayes’s jury the time was selected. jurors displayed ference of who no animus id. See of their own.” U.S. 95 S.Ct. Irvin, apart” This case is “worlds from (1975). 2031, 44 L.Ed.2d 589 actual prejudice change where mandated a count, 42 of ulti By Hayes’s Skilling, of venue. See 130 S.Ct. at 2921. mately “qualified” jurors degree had some “barrage” publicity “unleashed familiarity pretrial press with the cover against in Irvin was de- [the defendant]” age. “[p]rominence But dоes not neces in Skilling having scribed as included “re- sarily produce prejudice, juror impar of his ports slayings confessions tiality require ignorance.” ... does not regularly robberies ... delivered to 95% of Irvin, Skilling, (citing 130 S.Ct. 2914-15 dwellings county in the where the trial 1639). 366 U.S. at Our re occurred, population which had a (internal 30,000.” view of the voir dire record confirms the quotation Id. 2921-22 omitted). impression Court’s California marks Irvin: pattern deep prejudice and bitter community clearly reflected jurors prospective who did recall [f]ew in the sum total of the voir dire: 370 publicity initial any- remembered prospective jurors or almost 90% of than thing other the fact that the bodies ... point those examined on the enter- campus had been found on the of the opinion guilt, tained some as to and 8 university. were from me- Few aware jurors thought out of the Irvin was reports potentially prejudicial dia of the guilty. regarding ap- and inadmissible evidence Irvin, pellant’s acquittal prior Skilling, (quoting Minnesota 130 S.Ct. at 2922 1639) (internal charge guilty by murder or of the not 366 U.S. at omitted). Hearsay Larry B. Dahl’s alterations Evidence marks and quotation of any here that mem- Firearms Convictions no evidence There is jury was influenced empaneled the ber of challenges next claim the by convinced coverage, let alone by press sought in to prosecution manner which the Hayes guilty. it that was Dahl, man prove Larry alleg that the who properly “Reviewing courts are edly weapon delivered the murder to second-guessing the trial to resistant Hayes, was convicted of firearms offenses. juror’s impartiality, of a judge’s estimation Weller, Hayes a According requested to ordinarily in judge’s appraisal for that in the murders gun and silencer to use impossible of factors to by fluenced host Minnesota, an Jim from associate John fully Skilling, in the record.” capture arranged Larry for Dahl to son. Johnson denying Hayes’s change- In 2918. weapon deliver the from Minnesota to Cal motion, trial court of-venue said: unraveled, plot ifornia. After this Dahl charges in Minne was convicted federal Because of the manner which the transporting weap sota for his role in selected, ju the fact that individual on across state lines. I separately, rors were examined feel might that a lot of information which Hayes argues prosecution that the im- poisoned panel has never devel have hearsay properly introduced evidence of jurors to each of the oped. regard With pros- Dahl’s firearms convictions to bolster by that for cause passed has been credibility ecution witness Diane Weller’s court, they I am convinced that are and Hayes’s guilt. and to insinuate He con- jurors people will be fair and not who him deprived tends this of his “federal upon ‍‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌‌​​​​‌​​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‍public would decide a case based rights process due and his feeling pretrial publicity. Some of confrontation,” as рurportedly established something them do know about the case in Bruton v. Court United pretrial publicity, but I’m because of States, 391 U.S. regard convinced their statements (1968), Gray Mary- L.Ed.2d 476 ing publici either the limited amount of land, ty they exposed have been to or the (1998).1 L.Ed.2d 294 disregard fact that it it will and has According Hayes, at- prosecution any way any not in them to form caused tempted paint as Weller credible opinions is sufficient demonstration of jury by front of the fact connecting the the fact that the can defendant have against sepa- that she testified Dahl in a fair trial. proceeding rate with the fact that he was gives The record us no basis to second- ultimately convicted that case. The guess better-positioned the trial court’s as- prosecution following exchange elicited the Hayes sessment. Because suffered no on direct examination: Weller presumed or prejudice compelling actual venue, change Q: you against relief on this claim was And testified Mr. Dahl properly charges denied. in Minnesota while he was on argues ing transporting imply a firearm did not also that evidence of Dahl's gun Hayes convictions that Dahl delivered the instead firearms somehow undermined it, did, theory using he defense’s that Dahl killed MacVicar as the defense maintained driving weapon and de Laet after to commit the murders himself. Dahl's con- from reject argu- equally We with the de- Minnesota to California. viсtions are consistent possess- theory. ment because Dahl's convictions fense's things concerning guns;

of numerous the incidental detail that hearsay is in way is that correct? some involved in both instances. A: Yes. Bruton, jointly two codefendants stood trial for robbery. armed 391 U.S. at Minnesota, Q: testimony in that in And 124, 88 S.Ct. 1620. The trial court admit you story did tell the true there? codefendant, ted confession of one Ev A: Yes I did. ans, that implicated both Evans and Bru ton. Id. The court jury instructed the not Q: you telling story Are a true here? confession, to consider the which was hear A: Yes I am. say against Bruton, inadmissible in deter Id. at mining 124-25, examination, guilt. Bruton’s prosecution On redirect Supreme that, S.Ct. 1620. The Court held supposed telling linked Weller’s truth in because Evans did not take the stand and Dahl’s trial to his eventual conviction: subject was not cross-examination Q: against You testified Mr. Dahl in Bruton, jury’s knowledge of Evans’ Federal Court? right confession violated Bruton’s of con A: Yes I did. frontation, despite limiting instruction. Q: charged transport- Mr. Dahl is Court held that Bruton The presented ing very firearms that we are in “context[ ] which the risk that the talking about across [in case] not, cannot, will follow instructions is so state lines? great, consequences and the of failure so right. A: That’s defendant, vital to the practical that Q: an being pos- As well as ex-felon and human jury system limitations of the

session of firearms? Id. ignored.” cannot be at Gray extended Bruton to a codefen A: Yes. confession, joint-trial dant’s under similar Q: you heаring And testified at that circumstances, that ... by was “redacted against Mr. Dahl? substituting for the defendant’s name in A: Yes I did. space confession blank or the word Q: Mr. Dahl was convicted? ” Gray, ‘deleted.’ 523 U.S. at A: Yes. 1151. The Court held that these redac Objection. Hearsay. Mr. Minsloff: tions made no constitutional difference. Id. at 192, 118 S.Ct. 1151. The Court: Sustained.

Hayes clearly explain hearsay does not how these involved this claim arises exchanges violate very hearsay Confrontation different context. The Gray. Bruton and interpreted Clause as statement at issue here is the evidence of Court, convictions, Like the California we Dahl’s not a by any statement Hayes “infer the confrontation claim is based witness that was unable to cross- hearsay on the nature of the inability evidence examine. Bruton’s to cross-exam- Hayes, Dahl necessary prem- had been convicted.” ine his codefendant was a in that case. See Cal.Rptr.2d holding Cal.4th 989 ise of the Court’s Bruton, Gray P.2d 645. Bruton and not, do how- 88 S.Ct. 1620 (“Evans’ ever, substantial, proposition any per- stand for the confession added critical, hearsay haps weight violation violates the to the Confronta- even Govern- Gray subject tion Clause. Bruton bear al- ment’s case in a to cross- form examination, beyond most no resemblance to this case since Evans did not take the challenged hearsay any purpose, but was denied his con- Petitioner thus stand. immediately objection (empha- rather sustained an of confrontation.” stitutional added)). identify any properly to it. The district court denied Hayes does not sis opportunity to this claim. denied the witness he was cross-examine, what additional explain nor Hearsay C. Evidence aof Murder-for- to the existence related cross-examination Plot Hire might have of Dahl’s firearm convictions accomplished. another takes issue with hearsay violation. The violation occurred Gray are further dis Bruton hearsay when Diane Weller volunteered the trial here tinguishable because court $25,000 Hayes in evidence that had offered hearsay, challenged excluded the while exchange for her murder. Weller ex Gray in Bruton were ad confessions in plained, response prosecutor’s to the that be con mitted with instructions questions, that she had not revealed the only as to one codefendant. See sidered murders of MacVicar and de Laet to law 189, 1151; Gray, 523 U.S. at 118 S.Ct. earlier enforcement because she feared Bruton, 124, A at 88 S.Ct. 1620. 391 U.S. Hayes. being She testified to threatened in problem central those cases was the jail. before she went to Asked who had difficulty considering evidence practical her, responded: threatened Weller it for anoth purpose ignoring for one but I at Jim Johnson’s [received threats] er. Bruton addressed the “great” risk apartment February Kenny when jury a limit that could not or would not its Hayes was there. He threatened to kill the cir consideration as instructed under anything me if I ever said about what case, cumstances of that where the conse happened had in California. And then quences of its failure to do so would be my apartment, when I was at I believe a nonconfessing for “vital” codefendant. day or two after Jim Johnson was ar- Bruton, 135, 391 U.S. rested, Sondra Johnson said there was a Hayes identify any does not similar risk $25,000 contract out me for from complete here. The exclusion of the inad Kenny Hayes. jurors’ hearsay missible eased the task of ignoring by allowing disregard immediately lodged it it a them Defense counsel entirely. exceptional hearsay objection, Outside of circum which the court sus- stances such as Bruton presented, “juries prosecutor tained. The maintained that instructions,” presumed are to follow their Sondra Johnson’s statement about Marsh, Richardson v. 481 U.S. murder contract was offered not for the (1987), asserted, truth prove 95 L.Ed.2d 176 of the matter but to including the routine instruction to disre Weller’s reason to fear her life. The gard Hayes gives inadmissible evidence. court nonetheless reiterated the ob- stray ordinary jection jurors us no reason to from the told the was sustained and presumption here. the statement “should be stricken from minds.” [their] sum, right

In the confrontation at stake Gray Bruton Hayes immediately implicated argued, is not and now maintains, identify this case. fails to a witness Weller’s inadmissible refer- cross-examine, plot required he was unable to let alone ence to the murder-for-hire mistrial, say prejudiced by inability though how he was his the court sustained an objection instructed hypothetical to cross-examine such wit- to the statement and trial it. The court’s fail- disregard ness. The court did not admit the

515 mistrial, contends, he ure to declare vio- reliance on the Seventh Circuit process recognized Duckworth, to due Dudley lated his case of v. 854 F.2d 967 (7th by Cir.1988), Court Estelle v. misplaced. As an initial McGuire, 112 matter, S.Ct. that decision is not federal “as law (1991). L.Ed.2d 385 by determined the Supreme Court of the States,” 2254(d)(1), § United 28 U.S.C. so process guarantees Due “the pertinent it is to our habeas review fundamental elements of fairness in a it persuasively extent illuminates Su- McGuire, criminal trial.” 502 U.S. at preme precedent. Dudley Court provides Texas, (quoting v. Spencer S.Ct. it, McGuire, guidance, little because like 554, 563-64, U.S. does not involve hearsay. excluded (1967)). L.Ed.2d 606 The McGuire Court Dudley, a witness testified that he had cautioned, however, that “we ‘have defined threatening received phone calls. “[T]he category of infractions that violate ” admittedly threats came from an unknown very narrowly.’ “fundamental fairness” source and were not linked to [defendants] 73, 112 (quoting Dowling Id. S.Ct. 475 except prejudicial innuendo.” 854 F.2d States, 342, 352, United U.S. 110 S.Ct. at 969. The trial court nevertheless de- (1990)). 668, 107 “Beyond L.Ed.2d 708 clined to exclude the evidence of the specific guarantees in enumerated the Bill mistrial, threats or to declare a decisions Rights, the Due Process Clause has that the Seventh Circuit held violated due operation.” limited Id. (quotation and ci process. Id. at 972. In addition to Dud- omitted). tation ley’s dealing with an entirely different vio- Hayes identifies no decision—much less hearsay, lation—not but evidence inade- decision, a Supreme Court as AEDPA re- quately connected to the defendant —that quires hearsay by which excluded —in case is distinguishable from this one be- trial court with an jury instruction to the cause the trial court there admitted the disregard to it was nonetheless deemed problematic evidence instead of excluding prejudicial enough to undermine the fun- it, as the trial court did in Hayes’s case. damental fairness of criminal trial. The Even if we sufficiently prej- assume that process due claims in McGuire concerned hearsay udicial might process violate due (1) the admission at trial nonhearsay despite an jury instruction to the ignore syn- evidence related to battered child it, potential Hayes harm to from Wel- drome, a jury instruction that the ler’s hearsay volunteered does not rise to jury defendant maintained allowed the process level of due violation. Wel- past pro- consider acts as evidence of his gave ler testimony, admissible in nearly pensity to charged. commit the crime the same breath as her statement about event, any McGuire held that “neither the alleged cоntract, murder that Hayes evidence, challenged introduction of the had kill person. threatened to her in jury use, nor the instruction as to its ‘so prejudice Hayes’s Whatever allegedly of- infused the trial with deny unfairness as to ” fering contract to do the might same process due of law.’ Id. at jury already have added to what the knew 475 (quoting California, Lisenba v. was too little to undermine the trial’s fun- U.S. L.Ed. damental fairness. (1941)). light McGuire therefore sheds no required on what is for a Hayes witness’s volun- makes much of Justice Stewart’s subsequently observation, Bruton, teered and hearsay excluded in in concurrence process. statement to violate due hearsay “certain kinds of ... are at once I yet preliminary hearing, so diffi- A: Before the suspect, so damaging, so discount, cannot be jurors believe cult to minimal give trusted to such evidence Q: you Did want it? deserves, in- whatever weight logically it A: No. might give.” Bru- judge the trial structions Q: suggested it? Who (Stew- ton, S.Ct. 1620 But, [i.e., art, J., you prosecutor] A: I concurring). explained as believe above, the of Bruton Court the discussion did. specific addressed a situation that case I Q: you you Did I tell wouldn’t let that a would disre- in which the risk testify without it? and the harm to the gard its instructions I I A: don’t remember. don’t recall. particu- follow were defendant that would Q: you Do recall it whether or larly Hayes acute. has not demonstrated you anyone came from hired similarly high or a prejudice,

that similar you, you any way, associated with occurring, risk of its existed here. deal, any of a bargain, to ask for kind benefit, anything D. Garcia other than protec- Confrontation of tion? that he denied his contends prosecution to confront witness Deb- A: No. prevent- the trial court bie Garcia because cross-examination, the On defense tried to calling attorney, ed him from her Brad rebut the notion that Garcia had not affir- Wiles, testify about communications be- Wiles, matively attorney, instructed her to pre- The court tween Garcia and Wiles. immunity seek on behalf: it testifying vented from because Wiles 10th, Q: Shortly you after March en- attorney-client privilege that the concluded gaged attorney; the services of an protected the communications that the de- correct? fense wanted to reveal. ar- Wiles A: After March 10th? inability put that his to on the gues Wiles him a chance to expose Q: day you spoke stand denied Gar- First with authori- testimony to deliver cia’s bias motive ties. prosecution, to in violation of

favorable No, No, long A: huh-uh. it was a time the Confrontation Clause. high after that I talked to a school Garcia, examination of attorney. direct friend who is an prosecution drew attention to the fact that Q: engaged You the services of Brad supposedly actively seek Garcia did Wiles; correct? immunity testifying against Hayes: for A: I preliminary Just before the be- that, Q: anything Other than insofar as lieve, yes. you, any way, happen that would to Q: engaged You his services within any promises were there made me your weeks of first statement to the anyone associated with law enforce- 1982; in March police correct? protection? ment other than I A: Not as far as recall.

A: No. Q: you you Did Mr. tell that had Wiles Q: you? Made to liability criminal with re- had some A: No. to spect this incident? Q: you At what im- point did receive munity in this case? A: No. you you suspect that were liable The defense had some reason to

Q: Did he tell that might story Wiles tell different than for murder? prosecuted to be Not that firm knowing Garcia. the law A: No. Biggam, & Minsloff repre- Christensen you you that needed Q: Did he tell Hayes, sented Wiles had contacted Law- immunity prosecution? from Biggam repre- rence to seek advice about A: No. senting Biggam allegedly Garcia. told Q: you you that could con- Did he tell Later, get immunity. Wiles to Garcia cham- ceivably looking gas be spoke (Hayes’s to Jon Minsloff trial Wiles ber? counsel) phone. allegedly on the He re- A: No. that: had him for vealed Garcia contacted days speaking advice within of first to the him Q: you agree Did tell him or with police; he advised Garcia she could be you immunity? needed murder, prosecuted degree for first faced A: No. chamber, gas immunity; and needed negotiate him Q: you Did ask to agreed get Garcia and told toWiles her here in Attorney’s the District Office ‍‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌‌​​​​‌​​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‍immunity; negotiated and he with the immunity? grant for a Santa Cruz prosecutor immunity, agreed which shе A: No. It was after the District Attor- grant it officially months before it. I didn’t ney had talked about given by court order at the preliminary it even—I didn’t even know what was. hearing. exactly I contacted him to find out So quashed The trial court the defense’s know, why they you it was and what — Wiles, subpoena concluding that Garcia why it. it was suggested So attorney-client privilege had not waived as needed, Iso could understand. to the communications which about Q: couple And this is a of months after sought question defense Wiles. you go March of when first reviewing aAs federal court the denial you’re telling police; is what petition, of a habeas our concern is wheth- me? privilege ruling, regard- er the trial court’s I it a later than thought A: was lot law, less of its correctness under state that, thought just I it before but was Hayes’s right constitutional to infringed I could be mis- preliminary, but McGuire, confront Garcia. See 502 U.S. taken. (“[I]t 67-68, prov- 112 S.Ct. 475 is not the Q: preliminary hearing The was No- ince of a federal habeas court to reexamine 1982; of correct? vember state-court determinations on state-law A: That’s correct. review, In questions. conducting habeas Q: you And didn’t instruct Mr. Wiles to deciding federal court is limited to whether

negotiate with the local District Attor- Constitution, a conviction violated the laws ney’s you get States.”). to insure that Office or treaties of the United case; immunity in this what that, The has held Court you’re telling me? circumstances, under certain otherwise not, I A: did that’s correct. permissible exclusions of evidence from deny right criminal trial can a defendant’s sought The defense to call Wiles to testi- testimony Clause to cross- fy and contradict Garcia’s about under Confrontation See, e.g., him. given against the advice he had her and whether examine witnesses Alaska, 308, immunity. him v. 415 94 S.Ct. she had instructed to seek Davis U.S. (state (1974) 1105, long jury law occurs ‘as as the receives suffi- L.Ed.2d 347 appraise cient information to juvenile offense inad- biases making records ” Larson, unconstitutionally and motivations of the witness.’ limited the missible (Graber, J., concurring, 495 F.3d cross-examination of scope of defendant’s majority bias); writing but for a of the court on Douglas an witness for adverse Alabama, 1074, point) (quoting United States v. Sha- 415, 85 S.Ct. 380 U.S. (9th Cir.1995)). bani, 401, (1965) (witness’s 48 F.3d L.Ed.2d 934 invocation against privilege the Fifth Amendment cross-examination Gar self-incrimination denied the defendant an gave jury ample opportunity cia to opportunity effective cross-examina- appraise her biases motivations. tion). Adequate cross-examination entails Hayes asking was not from barred Garcia only the “to ask right [the witness] not actively sought immunity. whether she biased,” right he whether was but also her, pursuing He did ask and she denied it. argue “to make record from which to Hayes just claims entitlement to the why might have been biased [the witness] opportunity question to Garcia about this degree impar- or otherwise lacked that bias, potential put to on an but additional tiality expeсted of a witness at trial.” responses. witness refute Garcia’s This Davis, 415 U.S. at is more than the Confrontation Clause testimony contends that was Wiles’s guarantees light potential of the limited necessary impeach- to establish a basis for proposed testimony value of the from that, ing ground contrary Garcia on the was well aware that Wiles. Gar testimony, actively sought her she had im- immunity. pro-prosecu cia had Whatever munity help. with Wiles’s might tion bias flow from that fact alone if plainly was revealed. Even Wiles’s tes A defendant’s to cross- timony could definitively have established examine adverse witnesses is not unlimit sought immunity that Garcia rather than ed, though. “[T]he Confrontation Clause her, having upon it “forced” that difference an guarantees opportunity for effective unlikely to changed jury’s have cross-examination, not cross-examination impression of her motivations. The fact of way, that is effective in whatever and to having immunity provided at all most of extent, might whatever the defense wish.” jurors might the reason that view Garcia’s Arsdall, Delaware v. Van 475 U.S. testimony case, skeptically. any Wiles’s 89 L.Ed.2d 674 proposed testimony was relevant Fensterer, (quoting Delaware v. impeaching on the Garcia collateral issue 88 L.Ed.2d 15 immunity of her deal. It not did relate to (1985)). consistently “The Court testimony Hayes, her it implicating and so has held that a Confrontation Clause viola unlikely jury’s was to impres influence judge prohibits tion occurs when a trial sion of Garcia’s on trustworthiness any inquiry why may into a witness be Hayes’s guilt. central issue of Larson, biased.” United States v. 495 (9th Cir.2007) (en banc) Moreover, testimony by F.3d 1108 the proposed (Graber, J., However, concurring). especially when Wiles would not have been im- inquiry permitted, judges some is “trial peaching may of Garcia. That Wiles have impose thought retain wide latitude ... to reason that it important was for Garcia to immunity able limits on such cross-examination.” obtain does not mean that Gar- Arsdall, Van 475 106 cia did or that she what U.S. understood Wiles 1431. “No Confrontation Clause violation sought negotiate on her behalf with the

519 testimony move to strike the as to testimony about not Garcia’s prosecutor. immunity equivocal was limited. received which cross-examination when she (Silverman, J., that she “could be mis- acknowledged concurring). and F.3d “didn’t that she taken.” Garcia testified suggest opinions The Murdoch [immunity] before was” even know what independently the same result we have That in the trial. Wiles her involvement reached, because the conditions of both the immunity perception had a different Judge Silverman’s plurality Murdoch much of a represented have had would not (1) in concurrence are satisfied this case: contradiction. limited because of cross-examination was of our court in A en banc decision recent (2) and the attorney-client privilege, and supports our analogous facts a ease with defendant did not seek to strike the testi relief, opin- the fractured though denial fully subject mony he claims was not majority no provided in that case ions But neither rationale cross-examination. Castro, v. 609 F.3d rationale. Murdoch garnered majority of the court Mur Cir.2010) (en (9th banc), defendant fragmented doch. “When a Court decides prosecution a letter a sought disclosure of single explaining a case and no rationale Dinardo, witness, lawyer. to his sent majority], enjoys the result the assent of [a that Dinardo had allegedly revealed letter may holding of the Court be viewed as against the testifying coerced into been by position that taken those Members who defendant, testimony was and that his judgments concurred the narrow the letter as sought The defendant false. States, grounds.” est Marks v. United Dinardo, but the impeaching a basis for 51 L.Ed.2d 260 U.S. ground on the denied access trial court (1977) omitted); (quotation citation see attorney-client protected it was (9th Bradley Henry, F.3d 657 also v. privilege. Id. at 987. (9th Cir.2008), amending 510 F.3d 1093 the en five-judge plurality A banc Cir.2007) an (applying the Marks rule to Supreme Court has court held that “the Circuit). the Ninth en banc decision of and in clearly established whether majority The Marks rule does not distill attorney-client circumstances what votes, plu from the Murdoch because give way protect must order privilege Judge Silverman’s con rality opinion and Amendment confronta- a defendant’s Sixth independent ways offer of reach currencе plurality at 995-96. The rights.” tion Id. is ing the same result. Neither broader result, concluded, it could not as a narrower than the other.2 See United AEDPA. See 28 U.S.C. grant relief under Rodriguez-Preciado, 399 F.3d States 2254(d)(1). Judge provided § Silverman (Berzon, J., dissenting vote, but the outcome-determinative sixth (“Marks opinion part) is workable—one reasoning. under different he concurred as ‘narrow meaningfully regarded can be Judge “[t]here Silverman reasoned opinion than when one er’ attorney- conflict” was no between another — other, opinions. logical subset of broader privilege and the Confrontation client essence, opinion must Clause, lawyer did In the narrowest the defendant’s because Judge concurrence is plurality tion. But Silverman’s could be considered broader The deny habeas relief it plurality in the sense that it would than the in the sense that broader based on attor- for all confrontation claims in the deny all confrontation claims would ney-client privilege, regard to wheth- strike, without just not those of a motion to absence testimony a defendant moved to strike er attorney-client privilege. rooted in allegedly subject to full cross-examina- not claim, To a Napue a common denominator of the succeed on present (1) (quotation and citation a defendant “must show that the testi reasoning.” Court’s omitted)). (or evidence) court, mony by [presented pros the Murdoch were While (2) case, falsе, actually presented prosecu it with this would reach was ecution] do, major- we the lack of a tion knew or should have known that the the same result (3) false, rely testimony actually in that leads us to was that ity rationale case analysis. testimony on our own Confrontation Clause the false was material.” United Zuno-Arce, proper- court We conclude that district States v. 339 F.3d (9th Cir.2003). ly testimony denied this claim. False is materi any

al in context if “there is reason E. The Prosecution’s Failure to Cor- testimony able likelihood that the false Testimony

rect False could have affected the judgment of the Brown, jury.” Hayes v. 399 F.3d issue, one, previous This like the (9th Cir.2005) (en banc). Hayes fails to immunity arises out of Garcia’s deal and requirements: meet the first two he has testimony Hayes argues it. that her about not demonstrated that either falsehood he prosecution testimony did not correct false, actually attributes to Garcia was immunity from Garcia about her it prosecution that the knew as much. knew was false. He asserts that Garcia (1) immunity lied about when she received above, testimony As noted Garcia’s actively sought and whether she immu about precisely when she received immuni- Wiles, nity through lawyer her and that ty mostly equivocal. Garcia’s under- testimony appear Garcia’s false made her standing that immunity she received “[b]e- really more credible than she was. preliminary hearing, fore the I believe 1982” was consistent with a reasonable long has Court assumption officially that she did have and repeatedly held that “deliberate de immunity formally granted until the court jurors ception by pres a court and it preliminary hearing before the in No- entation of incompatible false evidence is ” vember of 1982. The defense’s different ‘rudimentary justice’ demands of understanding effectively she had —that and thus violates the Due Process Clause earlier, immunity prosecu- as soon as the Giglio of the Fourteenth Amendment. v. agreed lawyer tion to it with her not—is States, 150, 153, United U.S. definitive, regardless prosecution’s (1972). 763, 31 L.Ed.2d 104 “The same later agreement with it a settled state- government result obtains” when al ment appeal. Garcia never claimed to lows false evidence “to go uncorrected be certain of when immunity. she received appears” when it as when it solicits false contrary, On the “thought she said she it Illinois, directly. Napue evidence was a lot later than suggest- [the defense U.S. 3 L.Ed.2d ed], just ... preliminary,” before the but (1959). Napue’s rule covers false prose- she “could be mistaken.” The hoods that bear aon witness’s credi cution obligation had no to correct Garcia’s bility as much as it perti covers falsehoods qualified testimony about her own reason- 269-70, guilt. nent to a defendant’s Id. belief, ably actually held it because was not 79 S.Ct. 1173. contentions false. immunity agreement, Garcia lied about her uncorrected prosecution, ways testify falsely Nеither did Garcia about credibility that bolstered her actively sought immunity are therefore whether she asked, cognizable Napue. through lawyer under her Wiles. She was law and a fair trial process conveying not it came from of whether or you “Do recall jurors unusually dangerous. to that he was by you, associated anyone hired you or any kind of any way, to ask for you in with attorney’s requested office The district benefit, deal, anything other bargain, security Hayes’s at trial. The court extra answered “No.” She protection?” than security personnel consulted with court nothing useful to proved That answer investigators and from the district attor- recalling denied Hayes simply it because office, ney’s who voiced concerns about the immunity. of introduced the idea who security of witnesses who had been threat- possibility Hayes the ened and about Hayes attempts to contradict Garcia’s might escape. Hayes escaped had once (1) immunity with evi- seeking denial in before from mental health institution and of conversations between Garcia dence which he was detained. Over ob- (as above, in connection detailed Wiles jection, permitted screening the court claim) and Hayes’s confrontation everyone who entered the courtroom. Se- “negotiat- supposedly fact that Wiles curity included of a hand- provisions use immunity on Garcia’s behalf. On ed” for wand, detecting patdown held metal of out- way had no point, prosecution the first clothing, bags purs- er examination of and to knowing of motivation seek Garcia’s weapons, locking es for the courtroom in com- immunity as revealed confidential door, posting an extra in the deputy lawyer. govern- with her munications and two deputies courtroom additional out- to, not, required was not ment could jurors, Prospective side the courtroom. misstatement it supposed correct a badges af- who received identification Zuno-Arce, was false. See did not know selected, ter were were screened F.3d at 889. alongside general public until a prosecution’s point, the second On picked. was “negotiate” was that Wiles did position Flynn, Holbrook v. 475 U.S. hear- immunity preliminary before the (1986), 560, 106 S.Ct. 89 L.Ed.2d 525 already had prosecution because the ing, which the California Court ex immunity agreed grant Garcia —consis- plicitly affirming Hayes’s considered theory prose- that it tent with the was conviction, 1268-69, Hayes, Cal.4th the first conversation cution’s idea—before P.2d Cal.Rptr.2d estab took prosecution between Wiles and the analyzing the framework for wheth lishes prose- with the place. Wiles’s discussion courtroom measures violate a security er in- ensuring limited to “that the cutor was trial. must defendant’s to a fair We immu- grant previously-agreed-to court [of jurors presented first “look at the scene nity] proper form.” was done they saw was and dеtermine whether what testimony by proven As no Garcia an inherently prejudicial pose so as to false, way be or false right to unacceptable threat to defendant’s knew or should have known prosecution Holbrook, a fair trial.” about, correctly the district court denied assessing inherent 106 S.Ct. 1340. this claim. question is “whether an un prejudice, impermissi acceptable presented risk is Security F. Procedures at Trial jury’s coming play” into ble factors Id. at of the defendant. ap- that the trial court’s evaluation asserts (internal quotation marks 106 S.Ct. 1340 security measures that he con- proval of omitted). are not security him If measures unnecessary denied due tends were inherently prejudicial, Woodford, a court cial. See also found to be Williams (9th Cir.2004) 567, whether the measures actu then considers F.3d (denying habe- ally prejudiced jury. members of the Id. placement as relief because of additional 572, 106 challenged at the “[I]f S.Ct. 1340. security personnel in the courtroom was inherently practice prejudicial is not found inherently prejudicial). not Holbrook’s and if the defendant fails to show actual logic permits also entry-screening pro- prejudice, inquiry is over.” Id. guards cedures. If sitting uniformed di- rectly behind a defendant “need not be security screening procedures interpreted sign particularly as a that he is employed Hayes’s trial not were inher dangerous or culpable,” 475 U.S. at Holbrook, ently prejudiсial. the Court then the mere screening of that presence concluded of uniformed all who enter certainly courtroom security sitting officers behind the defen should not screening be. Indiscriminate trial inherently prejudi dants at was not the courtroom permits door an even distinguished cial. The Court cases where range “wider of inferences” than strate- required defendants were shackled or gically placed guards, it suggests and even appear prison garb jury: before the strongly more security designed The chief feature that distinguishes the guard against “to disruptions emanating security use of identifiable officers from from outside the courtroom.” Id. practices might courtroom we find in herently prejudicial is the range wider Further, Hayes has not shown that he juror of inferences might that a reason actually prejudiced by was security ably draw from presence. the officers’ measures. The California Court shackling prison While clothes are considered the actual impact of the meas- unmistakable indications of the need to ures, and found that separate defendant from communi prospective jurors those ques- who were ty at large, presence guards at a tioned about [security during measures] defendant’s trial interpreted need not be voir dire viewed [them] as routine a sign particularly as that he is danger procedure airport, like at an [those] culpable. ous or may just Jurors аs idea, good indicative that there was easily believe that the officers are there something important or a “big” or “se- guard against disruptions emanating vere” [being pro- case No tried].... from outside the courtroom or to ensure spective juror responses during voir dire that tense courtroom exchanges do not about either their own reactions or those Indeed, erupt into violence. it is entire persons of other they whose comments ly possible jurors any will not infer expressed overheard concern that defen- thing at all presence from the might dangerous. dant be guards.... society Our has in become presence ured to the guards armed Hayes, 21 Cal.4th at 91 Cal.Rptr.2d public places; most are doubtless 989 P.2d 645. no evi- offers granted taken for long so as their num dence to supreme contradict the state weaponry bers or suggest partic do not analysis jurors court’s of whether were ular official concern or alarm. actually by influenced the measures he Williams, 475 U.S. at 106 S.Ct. 1340. Holbrook complains of. 384 F.3d Cf. directly establishes that the placement (holding “conclusory of 588 allegations deputies ‍‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌‌​​​​‌​​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‍in and outside the courtroom at counsel that are unsworn unsup- inherently trial prejudi- ported by any proof proof’ or offer of do

523 right actual the to counsel. See United finding prejudice.). a States v. permit not (10th Davis, Cir.1995); 55 F.3d 517 properly claim was denied. Harris Relief on this (10th Cir.1994); Champion, v. 15 F.3d 1538 Delay Appeal on Direct G. Thurman, (9th Coe F.2d 528 Cir. Hayes arguеs nearly that the elev 1990).3 Lower courts’ extensions of Bark- sentencing and en-year delay between his however, setting, er to a new cannot be the filing opening of his brief on direct the of habeas relief after basis AEDPA. Supreme Court appeal to the California Supreme Court decision does “[W]hen on right process appeal. his to due violated ‘squarely the issue in address[] th[e] Supreme Court received California legal principle case’ or establish a and death sentence dock- notice context,” ‘clearly to a new extendfs]’ 26, August on appeal eted his automatic 2254(d)(1) § requires deny U.S.C. that we H. Peter appointed 1986. The court (9th Payne, relief. Moses v. 555 F.3d 742 represent Hayes to on December Young Cir.2009) Patten, (quoting Wright v. Van 10, record was filed on 1986. The certified 120, 743, 125, 128 552 U.S. 13, January requesting 1993. After (2008)) (second, third, L.Ed.2d 583 numerous extensions of time to receiving original). Supreme fourth alteration in No brief, Young was re- Hayes’s opening file “squarely Court decision addresses” the appointment April of his on lieved right speedy appeal, to a nor does the Eric filing opening without ever an brief. right speedy “clearly to a trial extend” to represent to Multhaup appointed S. appellate context. The interest 16,1995. an July Multhaup on filed prompt adjudication initial of a defendant’s 31, July 1997. After dis- opening brief on rights, right which underlies the to a complete to counting the time it took trial, speedy plаinly not the same as the (four years) period during and the record having interest a trial court conviction opening Multhaup which worked on quickly appeal. reviewed (two years years), delay of five brief Moreover, Hayes prejudice identifies no Hayes contends unexplained. remains delay, from and we resulted see five-year delay was excessive and passage none. The of time did not ad- him a new trial. entitles to versely Supreme affect the California grant relief on this claim We cannot Hayes pre- Court’s review of the issues Federal “clearly because no established sented, any point and he does not issue law, by Supreme Court as determined pursue he was unable to because of the recognizes States” a due United delay. explain why Nor does he time tak- right speedy appeal. to a process by appointed represent him en counsel 2254(d)(1). Hayes § relies on U.S.C. State, why it should be attributed to the or Wingo, Barker v. him prevent holding should the State from (1972), that case 33 L.Ed.2d 101 but responsible for his criminal conduct. The the contours of the established properly court denied relief on this district trial, speedy appeal. to a not an claim. Hayes cites circuit court decisions H. Cumulative Error analytical applied that have framework Abrahamson, Citing Brecht v. delayed appeals and held that U.S. of Barker delay process can 123 L.Ed.2d 353 appellate violate due by pre-AEDPA we are AED- decisions these cases were bound—as 3. Coe and Hanis are 2254(d)(1) apply only § appeal from a criminal PA's 28 U.S.C. and Davis is a direct —to conviction, clearly established Court. the courts that decided law so none of (1993), to determine whether there was such a Hayes argues that his conviction cumula- degree prejudice against petitioner because of the should be vacated (cita impossible.” the claimed constitutional that a fair trial was Id. prejudice tive omitted). above, even if the errors tion the recent case of Skill errors discussed — States, -, Kil- individually prejudicial. ing See v. United U.S. were (9th 1204, 2896, Poole, 2915-16, F.3d 177 L.Ed.2d 619 lian v. Cir.2002) (“[E]ven (2010), Supreme if were single no error the Court focused four determining presump there are several sub- in a prejudicial, where issues whether (1) errors, effect jury prejudice appropriate: stantial ‘their cumulative tion of may prejudicial be so as to the size and characteristics of the commu nevertheless (2) occurred; require nity reversal.’ United States v. de in which the crime Cir.1996).”). (9th Cruz, “blatantly 82 F.3d whether the information was con- prejudicial type Because we conclude that no error of information of the readers occurred, magnitude reasonably expect stitutional no cumula- or viewers could not be (3) possible. prejudice sight”; tive See United ed to shut from the time that (9th Larson, 1200, 1217 elapsed height States v. 460 F.3d bеtween the of media cov Cir.2006) (4) (rejecting trial; cumulative claim erage error and the actions “discovered in the respect prosecutions where we no error” with to earlier of sim trial). Here, majority defendants’ ilar or related crimes. the factor, recognizes that the or the first size AFFIRMED. in community of the which the crime took in place, weighs finding presumed favor of FLETCHER, B. Circuit Judge, prejudice. Maj. op. at 509. dissenting. respectfully I dissent. The guilt phase factor, the majority As to second the of trial should have been trans- characterizes the information contained County ferred out of Santa Cruz because pretrial publicity “unflattering,” as but pretrial publicity considerable adverse that type concludes this was not the presumption prejudice among created a vivid, unforgettable information that would jury pool. change warrant a majority of venue. The Maxwell, In Sheppard significantly v. mischaracterizes and dilutes that due a process requires shocking Court held nature of the information and change a images jury pool of venue or continuance when the to which the was exposed prior defendant can show a “reasonable likeli to the trial. pretrial coverage The prejudicial prior explicit pictures hood that news to trial included of the victims’ will fair prevent revealing a trial.” 384 U.S. remains the condition of the ex- (1966). 16 L.Ed.2d 600 humed skulls and that the victims’ heads speсifically, More criminal chopped because a de and hands had been off. These jury, images beyond fendant has the to an impartial merely are well “unflatter- grant a court change ing,” type shocking must motion to and constitute the that, seen, prejudicial pretrial publicity imagery venue “if once impossi- would be Indeed, it impossible impartial forget. transcript makes to seat an ble to of the jury.” Woodford, jurors v. many Daniels 428 F.3d voir dire reveals that of the (9th Cir.2005) (citation omitted). 1181, 1210 specifically hearing reading pri- recalled petition In the context for a trial writ of or to about the condition of the vic- corpus, enough, habeas the federal court must con If that infor- tims’ remains. is not independent revealing duct “an review of the record mation was released about the defendant’s criminal prior two murders with stories charged been had history instability, precise- and mental are One of the articles dis- in other states. charges ly type of information infiltrates Hayes’s previous murder cussing community the minds of members so that stay hospital at a mental described his also longer truly impartial can no render a Portland, Oregon. only pre- decision based on the evidence publicity majority’s suggests sented the trial itself.1 public confession such as amounting to respect (elapsed to factor three With Louisiana, that Rideau time), points out that the bulk majority 1417, 10 L.Ed.2d 663 is the pretrial publicity in this case was publicity that creates pretrial sort of only years to two voir released one before Certainly, the inter- prejudice. presumed Notably, Skilling in both and Pat- dire. in Rideau rogation and confession issue ton, majority support cited the its effect on the defen- had an undeniable time, of regarding passage conclusion the a fair trial. See ability to receive dant’s years passed height four had since the of However, 1417. U.S. at trial, publicity the adverse before or more suggestion is a far too nar- majority’s the than twice the amount of time here. 130 proper The reading row of the case. focus 2916; Yount, S.Ct. at Patton v. 467 U.S. inquiry public- is not on whether the of our 81 L.Ed.2d 847 jury exposed the was is exact- ity to which (1984). majority contends that cases, ly previous the same as that but publicity pre- failed to establish that “the type it the that would rather on whether ceding greater negative his trial had a members, community of stick in the minds impact Maj. op. than that ... in Yount ”. an rendering impossible impar- it assure However, analysis ignores at 510. the Daniels, tial See 428 F.3d at 1210 verdict. primary pub- fact that the reason (noting inquiry that the relevant is wheth- licity in Yount did not amount to a due degree prejudice of er “there was such process passage violation was because the that a trial against petitioner fair (four years) “any pre- of time rebutted Indeed, impossible”). Skilling does not sumption partiality prejudice.” of pretrial exрo- from media prejudice limit Yount, 1033-35,104 S.Ct. 2885. confessions, filmed but rather ac- sure to A review of Yount makes clear that it was knowledges may that there be “other bla- passage years of four that blunted the tantly prejudicial type information of the perspective jurors of the memories reasonably or viewers could not be readers dangers prejudicial expo- minimized the of expected sight” to shut from or that could pretrial coverage. sure to media indelibly any- in the mind of “imprinted be contrast, Skilling, By transcript watched it.” of the voir one who Grotesque depictions passage at 2916. and de- dire here reveals that the body years one or two was insufficient to scriptions parts, of victim combined erase granted paid change for of venue to be until 1. Careful attention should be to two dis- tions turbing granted Hayes's trial facts. The court judge blatantly after voir dire. The trial change penalty for of venue for the motion openly political considered costs and other trial, phase although it denied mo- ruling upon change issues in the motion for transcript guilt phase. The tion at the reveals overwhelming venue. In the face evidence judge admitted that he took cost that the trial indicating by previ- that the was tainted ruling. making into consideration his first exposure, media he costs to ous considered Second, support he stated on the record his important. the court to be morе pending bill that would not allow mo- throughout spread the taint that had SANDS, LLC, LAS VEGAS a Nevada community from the sensational me-

small addition, liability company, coverage dia of the case. limited DBA Vene arguing Casino, the venue issue before lower tian Resort Hotel Plaintiff- court, judge defense counsel made the Appellee, survey aware of the results of an informal among taken the members of the Santa community, County which revealed Cruz NEHME, Amine T. Defendant- community

that 71% of the members had Appellant. something prior about the case read words, despite voir dire. In other No. 09-16740. time,

passage day on the first of trial Appeals, United States Court of nearly three-fourths of the members of the Ninth Circuit. community something recalled about the media previous exposure. case from Un- Argued and Submitted June doubtedly, greater proportion an even had gruesome their memories of the details Filed Jan.

triggered by testimony and facts that would be revealed over the course of the

trial. nothing These memories could be prejudicial.

short of judge, trial how- ever, gave almost no consideration telling survey. results of this factor, Skilling

As the final we have presented not been with sufficient informa- usefully tion to prior jury assess decisions respect to similar It is crimes. inter- note, however, that, esting to near the time Hayes originally change moved for a venue, four other homicide cases were County,

transferred from Santa Cruz very county, upon to other ‍‌​​‌‌‌​​‌‌​‌​‌​‌​‌‌‌​​​​‌​​‌​‌​​‌‌​‌​‌‌‌‌‌​‌‌​‌‌‍counties based community’s exposure to media cover-

age.

I respectfully I grant dissent. would petition grounds habeas on the grant the lower court’s failure to his motion change of venue violated his impartial jury to an and to pro- due

cess of law.

Case Details

Case Name: Hayes v. Ayers

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 7, 2011

Citation: 632 F.3d 500

Docket Number: 07-99014

Court Abbreviation: 9th Cir.