*1 case, ring, 377. In this I am not F.3d at presented

convinced that Bean has evidence prejudice as a to show he suffered actual joinder result of the of his two murder I, therefore, counts. must dissent from Part second-guess V. I would not the California holding joinder Court’s discretion, not an abuse of and would affirm Bean’s conviction for the Fox murder. WINDHAM, Petitioner-Appellant,

John MERKLE, Respondent-Appellee. William

No. 97-15455. Appeals, United States Court of Ninth Circuit. * Submitted Nov. 1998. Decided Dec. * 34(a); panel unanimously argument. R.App. finds case oral Fed. P. Ninth Cir- suitable for submission on the record and briefs and without cuit Rule 34-4.

ALARCON, Judge: Circuit (“Windham”), a Califor- John W. prisoner, appeals pro nia se from the petition for a writ of denial of federal corpus pursuant to 28 filed U.S.C. deprivations rights § He asserts Fifth, Sixth, Eighth protected under After summariz- Fourteenth Amendments. facts, ing relevant we address each of separately. affirm in contentions We these part part vacate and remand with *4 directions for the district court to afford petitioner a chance demonstrate cause defaulting right and federal constitutional has prejudice that resulted.

I . Barry Dewayne Woods

Windham and (“Woods”) by jury trial were convicted after degree, attempted in first murder murder, and two counts of assault with jury found that Woods firearm. The in the a firearm commission personally used separately found charged offenses and charged principal in the offenses with a firearm. Windham was armed period, Allen During relevant Susan (“Allen”) sister, Trudy her Johnson and (“Johnson”), together apartment in an lived Mayse inWay Sacramento. on LaSandia (“Walker”) of Allen’s was a friend Walker two weeks before Approximately son. 1989, brought Day in Walker four Christmas apartment. He Allen’s tires to automobile store them her her if he could asked agreed. apartment. Allen 1989, 18, Walker about December On or Per, Susanville, Windham, Pro W. John (“Barkus”) in the foot. Jerry shot Barkus California, petitioner-appellant. were with Bar- Eugene Woods and Colombo, Depu- Supervising Harry Joseph when he was shot. kus General, Sacramento, California, ty Attorney (“James”), neigh- Allen’s James Herbert respondent-appellee. evening, bor, late testified that he a man in a observed December neighbor up a named beat ski mask red watching. men were Magoo. Several mask, whom James subse- ski man the red Woods, as co-defendant quently identified O’SCANNLAIN, ALARCON, Before: beating, some- large pistol. After the had FERNANDEZ, Judges. Circuit p.m., p.m. 12:00 four time between 11:00 apartment. Allen’s ALARCON; proceeded of the men Dissent by Judge Opinion He and open the front door. Woods kicked Judge FERNANDEZ. apartment. the others entered the Windham clude black women from the outside, approximately remained 500 feet gender. their race and apartment. from the review de We novo the denial of a inside, Once the intruders demanded to prisoner’s petition corpus for habeas During know Walker’s whereabouts. in- pursuant § to 28 U.S.C. 2254. See Eslami trusion, Johnson shot in the foot. Alien (9th White, nia v. Cir. gun was forced to lie on the floor with a held 1998). Typically, reviewing a state trial Upon departure, her head. their the as- judgment proceed court’s in a corpus sailants took two of Walker’s tires from ing, affecting trial rights errors constitutional left, Johnson’s bedroom. After the men Al- subject analysis. are to a harmless error See police. len called the Abrahamson, 619, 638, 113 Brecht v. James that he testified followed the men as Howev they apartment left building Allen’s to a at 86 er, equal protection violations selection Caselli Circle. He observed the men remov- subject of a are not to the harmless ing Windham, their recognized masks. He Marshall, analysis. error Turner Woods, Barkus, Eugene Woods. (9th Cir.1997) (citing F.3d 1254 n. 3 Johnson, During the assault on Alen and Gray Mississippi, U.S. *5 (“Chme- Craig James McMahon and Chmelik (1987)). lik”) brother, visiting were James McMahon’s In the brief Windham filed in the district McMahon, apartment Michael at his at 92 support in petition court of his for a writ of They Caselli Circle. observed four or five appeared corpus, men carrying gold- prose- who to he contended that the be rimmed tires. carrying improperly The men peremptory the tires cutor exercised chal- their, yelled at responded James McMahon. He lenges against black women because by raising his hands to indicate his lack of gender. race and Windham did not raise a in happening. involvement what was Mi- challenge federal constitutional gen- based on chael McMahon told his brother to leave. der discrimination in the state trial court. He assumed James McMahon would leave During jury process, the selection Mr. Rich- Chmelik, with already who was in his Mus- Reese, Barkus, L. ard counsel made a tang automobile. reject motion that the prosecutor’s got James McMahon request Sanders, into Chmelik’s Jacquelyn Mus- an Arican tang. point, At American, four or excused, five men alternative, be inor emerged from the building. side As that a mistrial be declared because put motion, Mustang Chmelik in James I believe that Attorney sys- the District “whip” “great McMahon saw big Woods out a tematically using peremptory chal- handgun.” weapon Woods fired six class, lenges particular to exclude a that is times. Two shots hit Chmelik in the chest. blacks, of course. The Court can take They were fatal. Two of the shots hit James judicial notice that the four defendants in leg. McMahon’s are, fact, this case black. As the Windham and Woods went to the home of now, right constituted the District Attor- (“Adams”) Eugenia Adams between 1:15 a.m. ney has excluded three blacks. Three of and 2:00 a.m. on December 1989. Woods blacks, people those are I think [ ] magnum secreted a .44 revolver under prima showing here is that he is facie refrigerator. Adams’s Windham and Woods using systematically this to exclude blacks dropped bullet shells into the toilet jury. from apartment. Adams’s Police officers seized added.) Soika, (emphasis Mr. John I. coun- day. the revolver later that It was the fire- Windham, joined sel for in Mr. Reese’s mo- arm in committing used the crimes tion. Chmelik and James McMahon. Following Mr. Reese’s statement of his

II motion, prosecutor the trial court asked the prosecutor prosecutor to comment. responded contends that the en- as gaged pattern in of discrimination to ex- follows: Basically, pres- early It is the selection. there are point to out that

I want panel of 12 to is five chal- ently jurors on the out what have come down three we which, blacks, they only given remain on the reason lenges, whom are two of men; panel throughout is, this. they and he wanted were women challenge young going deny white I’m to the motion at this My was a so first challenge my I own reasons man. had time. him. course, you’re it if allowed renew Of juror who Robinson] was a [Peggy Jo you justify proceed. it as we the facts feel only area in with not familiar process was com- When the selection volved, daughters through her had but also and one black man pleted, black women two case, and whatever its causes heard of ju- jury. on the After the alternate served out to be might have turned else. That selected, Mr. Reese renewed his rors were know, I but I’d helpful People, don’t asked the court to motion a mistrial and rely courtroom and not rather she on the excused note that the three women impression she received elsewhere. some Mr. prosecutor all black individuals.” “were I had So I think it’s understandable prosecutor not contend that Reese did exercising good independent reason for jurors gender. because of their excused the that. motion, “I denying the court stated: I would like to see people, two The other has met the burden do not feel the Defense men, pick but this one seat seems at- showing purposeful discrimination and That’s all. women. jurors, just tempt eliminate relief he explained Mr. Reese After they preconceived notion that would be [sic] argued as requesting, voting based on race alone accordance follows: Wheeler, [People v. Cal.3d with both *6 I for the motion. I see the reason Well 890, (1978), 748 Cal.Rptr. 148 583 P.2d they their think that have sustained don’t 79, Kentucky, 476 U.S. Batson v. really blacks [ are to ] burden. We down (1986) 1712, ].” gave I challenges. peremptory of five out appeal an be- and Woods filed Windham excellent, think, I certainly undeniable an Appeal of the State of the Court of fore Robinson, and we still have for Ms. reason judgment of conviction. blacks, California from the I remaining so on the three court, argued for the first that Woods any showing of Before is think that there don’t for more prosecutor’s desire that the required. is time

what “erroneously showed men on the “I there’s responded: think Mr. Reese sus- against another to discriminate intent just by showing exclusion a facie prima been by suggested his trial pect not classification chal- [peremptory out of five of three blacks women, general.” or women counsel: black lenges].” added). on direct In brief (emphasis in the court denied the motion The trial “join[ed] argument appeal, this Windham following words: entirety.” in its challenged Attorney has District The to consider Appeal declined The Court of jurors, jurors of the were black three five gender contention. discrimination Windham’s I’m com- Ms. Robinson. One for women. is held: “This claim Appeal The Court it had a basis other that pletely satisfied ground of because that procedurally barred assumption that a black on [sic] than based trial court.” objection not in the was raised defendants perhaps favor the juror would DeWayne and John Barry Woods People v. in this case. Windham, Cal.App.4th Willie proof required It if the burden is (1992) (“Woods Wind- Cal.Rptr.2d231 course, Attorney is shifts, District the ham”). com Appeal also The Court of explanation required show reasonable event, at time “In the follows: mented as challenges. for his motion, panel of nine consisted the the to find stage, prepared I not At am this prosecutor’s The three men. women and discriminatory purpose which is to infer or closely more panel the evident desire the burden. required to shift what is “[ajfter approximate as a He that the population whole can- Court. asserted third equated impermissible group not be with prosecutor, black woman was excused Appeal People bias.” Id. The cited Court then the defense Wheeler motion on made Hayes, Cal.Rptr. 52 Cal.3d ground improp- prosecution that the was (1990), support 802 P.2d 376 of its conclu- erly excusing jury. blacks from Petition- gender sion that the discrimination claim was joined argued er motion.” Hayes, In procedurally barred. Califor- juror separately “[ojbjecting that be- Supreme nia was also faced with a Court just-as improper cause she is a woman as claim prosecutor improperly that used objecting is black.” because she peremptory challenges discriminatory for a purpose that been Supreme summarily had not raised before the Court California Supreme trial court. Id. The of Cali- petition, citing denied In re Windham’s Wal claim procedurally fornia held that the treus, Cal.Rptr. 62 Cal.2d barred. It reasoned as follows: (1965). Waltreus, P.2d 1001 In Califor A party opposing party believes ai'guments nia Court held re improperly using peremptory challenges jected ordinarily appeal on direct cannot be discriminatory purpose for a must raise petition raised in a for a writ of habeas timely challenge prima and make a facie corpus. Id. prima case. Once a facie case has been In its answer to Windham’s federal habeas shown, party shifts to the burden other corpus petition, argues that the State be- peremptory demonstrate that chal- prima cause Windham to make a lenges were on a failed facie exercised neutral basis particular related prosecutor peremptorily to the ease to be tried. case that the chal- case, lenged prospective jurors on the basis of defendant did not raise timely challenge in the trial ethnicity, court on the “the prosecutor was not obli- ground exercising gated peremp- to articulate reasons for peremptory challenges to improperly ex- torily excluding pro- the three Black women Spanish-surnamed persons clude from the spective jurors.” The State did not discuss jury. Although peremptory some separate prosecu- Windham’s that the claim challenges to which defendant raised tor Equal violated the Protection Clause objections Wheeler were exercised excluding prospective jurors because of their Spanish-surnamed individuals the record gender. The State did assert that the *7 objec- indicates that in instance each the gender procedurally discrimination claim tion was the directed to individual’s atti- adequate independent barred an state penalty tude toward the death rather than ground. ethnicity. to his or her The claim of im- proper peremptory challenges use of to findings In his and recommendations to is, Spanish-surnamed persons exclude court, magistrate judge the district rec- the therefore, procedurally barred for failure finding that of the trial ommended the challenge to timely raise a in the trial prosecutor that challenges the exercised his court. assumption “on an reasons other than that 604-05, Cal.Rptr. Id. at at challenged jurors 802 P.2d the would black favor the (internal omitted). at 392 citations defendant” should be disturbed. not The magistrate judge limited his review to the Appeal reject The of California Court objection presented the trial judge to state ed Windham’s contention that the removal of prosecutor’s peremp- that the of his prima three African Americans constituted a exercise showing prosecutor tory challenges against facie that the exercised discriminated blacks. challenges peremptory for the discrimina magistrate The judge did not consider the tory purpose removing prospective jurors Appeal’s ruling California Court of that the because of their race. Woods and Wind gender procedurally discrimination claim was ham, (Cal.Ct.App. No. Aug. C010320 presented barred because it was not to the 1992) (unpublished). record, reviewing trial court. After the the magistrate adopted judge’s district court the petition

Windham filed a for a writ of findings in full corpus Supreme the California and recommendations without before jury a that a and were members of entered of Windham’s discussing merits the against guilty unanimous verdict Windham. contentions. accepted prosecutor’s ex- the The court also equal protec reviewing Windham’s peremp- planation that he had exercised his contention, will consider wheth first tion we solely he tory challenges because wanted concluding that erred er the district court jury, more men on the and not see the trial court’s supported the record jurors de- were black. At the time the the to sustain his finding failed that Windham challenge objected prosecutor’s to the fense showing prima that making a facie burden of discrimination, nine on the basis racial discriminatory purpose a prosecutor had jurors prospective in the box were the twelve jurors through the exer excluding black have reason- The trial court could women. challenges. In Bat- peremptory of his cise that the ably inferred from this circumstance son, held Supreme Court thé United States purpose not to excuse prosecutor’s challenges in peremptory that the exercise instead, blacks, attempt to have a but solely on race selecting petit jury based pro- closely represented panel Clause. that more Equal Protection violated 96, 106 at S.Ct. 1712. of men and women in portionate U.S. distribution community. prima facie case To establish mo- court denied the After the defendants’ discrimination, a defendant purposeful racial reject prosecution’s of his exercise objection ground tion on the interpose must Sanders, prosecutor perempto peremptory challenge has exercised to Ms. that the ry challenges prospective jurors be peremptory other exercised several defense must artic race. A defendant cause of their prosecutor did challenges. The not exercise relevant circumstances ulate facts and other challenges. remaining peremptory any of his an inference that that raise renewed its motion time the defense At the challenges “to exclude peremptory exercised ju- mistrial, twenty-five percent of the petit on account veniremen from the try the case were black. rors sworn 1712. Id. at of their race.” in Batson Court instructed deciding the defendant “In whether judge’s findings in the the trial “[s]ince showing, the trial requisite made the has largely will here context under consideration all circum relevant court should consider credibility, a re- evaluation of turn on the 1712. If Id. at S.Ct. stances.” ordinarily give those should viewing court prima facie court determines district 98 n. great 476 U.S. at findings deference.” made, shifts “the burden showing has been pres- The defense did forward with a neutral to come the State support its contention any evidence to ent jurors.” challenging black explanation peremptory prosecutor used 97, 106 at S.Ct. 1712. Id. systematically exclude blacks challenges “to joined in counsel defense Windham’s jury.” The factors considered from *8 that who asserted objection a codefendant contrary a conclusion. the trial court lead using Attorney systematically is “the District accepted previously had prosecutor par- challenges to a exclude peremptory his jurors. They had been sworn three black peremp- using [his he ... that ticular class jury when the part petit of the were and systematically exclude challenges] to tory The trial for a was renewed. motion mistrial judge jury.” The state trial from this blacks expla- prosecutor’s credible the court found had not carried its defense found that exclude attempting to he was not nation that prima case that a facie presenting burden of race. Windham on account of their blacks peremptory his prosecutor had exercised prosecutor that the to demonstrate has failed assumption that a on an challenges “based pre- peremptory challenges to his exercised perhaps favor the defen- juror would black serving on the because from vent blacks circum- The relevant in this case.” dants their race. it made this court when before the stances claim that the turn to next Windham’s We prosecutor that the the fact finding included principles announced violated the jurors. black accepted three previously had exercising peremptory chai- by process in Batson jurors the selection These survived lenges to exclude women from the panel constitutional properly claims not raised a gender. because of their This issue was not trial court. presented to the trial court. As discussed Finally, imposes special the Great Writ above, the challenged prosecu- defense costs on system. our federal The States

tor’s exercise of peremptory challenges possess primary authority defining for solely ground purpose that his was to enforcing the criminal law. In criminal jurors exclude black each of the they trials responsibili- hold the initial defendants was black. ty vindicating rights. constitutional Federal intrusions into state criminal trials only The State not failed to assert the frustrate both the sovereign power States’ procedural defense of default in the district punish good-faith offenders and their court, it did not refer to this doctrine in the attempts to honor rights. constitutional brief it filed this court. We must decide Wainwright whether we have the In Sykes, recognized discretion to do so on we our motion. that particularly high these costs are when a trial prisoner default has barred a from Cain, In Trest v. 522 U.S. obtaining adjudication of his constitutional (1997), 139 L.Ed.2d 444 situation, claim in the state In courts. Court reiterated principle the de- the trial court has had opportunity no procedural fense of default is waived correct the defect problematic and avoid State if it is presented not raised and counsel, retrials. The defendant’s at-, district court. Id. 118 S.Ct. at 480. reasons, whatever has detracted from the question The narrow presented in Trest v. significance by trial’s neglecting to raise a Cain was whether a United States Court of claim in that forum. appellate The state Appeals required question consider the courts have not had a chance to mend their procedural sponte. default sua The Court own fences and avoid federal intrusion. rejected the argument State’s that a “habeas writ, Issuance of a habeas finally, exacts court” must raise this issue on its own mo- charge by extra undercutting the States tion once it has possibility noticed the of a ability to procedural enforce its rules. procedural default. See Id. The Court de- supported These Sykes considerations our clined to resolve the inter-circuit conflict re- that, ruling procedural when a default bars garding may whether “habeas court con- litigation claim, state of a constitutional procedural sider a default that the at State prisoner may state not obtain federal point waived, habe- some has or failed to raise.” as relief showing absent a of cause Id. prejudice. actual (9th Boyd In v. Thompson, 147 F.3d 1124 128-29, (Internal Id. at 102 S.Ct. 1558. cita- Cir.1998), we may held that a district court omitted). tion and footnote procedural raise the defense of default sua sponte if to do so serves the interests of Thompson, Coleman v. justice, federalism, comity, judicial effi- (1991), ciency. persuaded Id. at 1127. We are again necessity stressed the for the presented under the circumstances in this application procedural of the default rule in record, it would further these same interests reviewing corpus petitions habeas filed apply exercise our proce- discretion to prisoner. dural default bar to a consideration of the A petitioner who has defaulted merits of prosecu- Windham’s claim that the his federal claims in state court meets the *9 intentionally tor peremptory exercised chal- requirements exhaustion; technical for lenge against potential jurors solely because there are any no state longer remedies gender. of their “available” to him. See 28 U.S.C. Isaac, Engle 107, 2254(b); Isaac,

In § v. 456 Engle 107, U.S. v. 102 S.Ct. (1982), 125-26, L.Ed.2d 783 n. the 102 S.Ct. 71 L.Ed.2d (1982). explained the harm that can flow from In the indepen- absence of the recognize a failure to applica- a state adequate court’s dent ground and state doctrine in tion procedural habeas, of its own rules to federal federal petitioners habeas would

HOI a present to require- give opportunity Windham an to avoid the exhaustion be able to justification pro- defaulting prejudice claims and by their federal cause ment independent and ade- court. The state cedural default. ground ensures that

quate state doctrine correcting their own interest the States’ Ill in all federal habeas respected mistakes is that his Fifth and Windham contends eases. rights pro to due Fourteenth Amendment at 111 S.Ct. 2546. Id. the evidence was cess were violated because gender to raise dis- failure the Windham’s finding murder support insufficient to a of during selection claim crimination attempted habeas cor and murder. Federal objection a by making proper and process, petitioner to a who pus relief is available gender showing purposeful of prima facie insufficient to claims that evidence discrimination, of the trial court deprived where, only support or her conviction pre- to action opportunity to take remedial light most considering the trial record potential of equal protection rights serve the tri “no rational prosecution, favorable to the addition, jurors. women proof guilt of of fact could have found er carry his given opportunity to was not beyond a Jackson Vir reasonable doubt.” expla- gender-neutral providing of burden 307, 324, 2781, 61 ginia, 443 U.S. nation. (1979). applied standard is L.Ed.2d 560 This comity and “our It would be violative elements to the substantive with reference to hold that the for this court federalism” by law. defined state the criminal offense as Equal Protec- California violated State n. 2781. at 324 See id. discriminating by purposefully tion Clause gender when against women of their prosecutor sought Windham’s the trial presented to issue was never theory and that he aided conviction under the appropriate an case this is Johnson, court. We believe Allen and abetted the assaults on permit to decline to our discretion to exercise attempt and of Chmelik and that the murder trial, by defendant, at represented counsel were the nat murder James McMahon ed judge, the trial an issue before to fail to raise as probable consequences of those ural and deliberations, jury’s of the the outcome await law, “[t]he test Under saults. California relief, corpus seek federal and then liability for collateral and an aider abettor’s has highest court declined after the state’s upon all of the depends ... offenses criminal his federal constitutional the merits of reach par surrounding the facts and circumstances by procedurally it barred claim because People Ngu conduct.” ticular defendant’s successful, if stratagem, law. This Cal.Rptr.2d 535, 26 Cal.App.4th yen, taking steps judge from prevent a trial would probable conse The natural defendant’s federal sure that a state to make objective Lia test. uses an doctrine quences preserved, are rights constitutional a reasonable bility whether “is measured remedy. cannot appropriate We fashion have position would defendant’s person “sandbagging” a form of in this participate charged of known that the should have or system. judicial state’s reasonably conse foreseeable was a fense was not procedural bar Because at Id. and abetted.” of the act aided quence regarding a defense the State as raised 535, Cal.Rptr.2d issue, however, did have Windham light Viewing the evidence attempt persuade the opportunity to we hold prosecution, favorable to the most his default and cause for district at was introduced evidence that sufficient may from prejudice have flowed any finding of the jury’s support trial he nor was deprivation, alleged constitutional the mur murder of McMahon attempted facts, if present he could aware that made with Barkus der of Chmelik. exist, has suf that he demonstrate member, Walker, shot gang a rival when Boyd v. justice. miscarriage fered *10 of this two weeks in foot. Within Therefore, Barkus we 1128. 147 F.3d at Thompson, incident, accompanied co-defendant Windham to district court matter must remand this men, Woods argues and several other who were that the trial court armed, to the home of Allen’and Johnson finding erred in that Reed unavailable attempt to locate Walker. Windham because the State did not demonstrate that it apartment stood outside the while Woods diligence attempting used reasonable and the other men assaulted Allen and John- Supreme locate him. The United States attempt son their to discover Walker’s Court has held that “a witness is not ‘unavail assaults, Following whereabouts. purposes exception able’ ... of the to the men carried tires from Allen’s and Johnson’s requirement prose- confrontation unless the apartment. group upon The came Chmelik good-faith cutorial authorities have made a and James McMahon. Woods fired six presence effort to obtain his at trial.” Bar killing into rounds Chmelik’s car Chmelik 719, 724-25, Page, ber v. 390 U.S. 88 S.Ct. injuring James McMahon. (1968). 1318, 20 We review de L.Ed.2d A rational novo whether the Court’s standards trier fact could conclude that Dres, unavailability Windham served as the lookout for have been met. armed assault on Allen shooting (citing McConney, and the of 784 F.2d at 998 U.S. v. (9th Cir.1984)). A Johnson. rational trier fact could con- 728 F.2d person clude that a reasonable Windham’s position reasonably would have foreseen that The record demonstrates that Woods, having assaulted two women in an prosecutor good-faith made a effort to locate member, attempt gang to locate a rival would preliminary hearing, Reed. At the Reed was attempted commit murder and murder in his ordered to remain in contact with the Sacra avenge efforts injury to his friend. County Attorney’s mento District office. The evidence was sufficient for a rational prosecutor, Deputy Attorney The District

jury to find that Windham aided and abetted Reeves, subpoena Kenneth July issued the criminal assaults on Allen and Johnson compel testify. Reed to Reeves attempt- the murder of Chmelik and occasion, and Reed met on one after the ed murder of McMahon were the natural and subpoenas pro were issued to discuss Reed’s probable consequences of those assaults. testimony. time, posed repre At that Reed that he sented would be at the address set

IV subpoena. forth in agreed He also Windham contends that his Sixth Amend- appear prosecution at trial as a witness. right ment to confront adverse witnesses was approached, As the date for trial the Dis- violated preliminary hearing when the testi- Attorney’s attempted trict office to contact mony witnesses, of two Jonathan Reed by telephone Reed on three occasions with- (“Reed”) Eugenia (“Adams”), Adams out Attorney’s success. The District office read to the after both were found to be parole contacted Reed’s officer. A unavailable. bench warrant was issued for Reed’s arrest. The “main purpose” and essential assigned investigator Reeves a criminal right of the Sixth Amendment to confronta Attorney’s from the District office to locate opponent tion “is to secure for the oppor investigator Reed. The tunity searched for Reed at of cross-examination.” Delaware v. home, home, Arsdall, parent’s places 673, 678, and other Van frequent. Reed was known to However, He also “[a] to see if checked Reed was listed as an right defendant’s ... confrontation is not casualty. addition,-a accident Campoy, absolute.” Dres v. detective of (9th Cir.1986). City Department prior testimony Sacramento Police of a help was enlisted to witness is admissible at trial if it locate These at- meets a Reed. First, two-prong tempts to prosecutor test. locate Reed demonstrate that the must prove diligence. that the witness is unavailable to testi exercised due The ad- Second, fy at trial. testimony the defendant prelimi- must have mission Reed’s at the opportunity had the nary hearing deprive cross-examine the did not Windham of his prior witness at hearing. right See id. at to confrontation. *11 objects to the admission of his Windham also contends that

Windham right Delgadillo to confront adverse Angel testimony Sixth Amendment of Detective by violated the admission of was witnesses and Jonathan Reed. The trial court allowed hearing testimony. preliminary Adams’s prosecution testimony of to introduce the testimony after The trial court received Delgadillo, a Sacra Detective member due to her ruling that Adams was unavailable City Department Gang Police Street mento right of her Fifth Amendment assertion Unit, “gang expert.” Delga- a Detective as against self-incrimination. factions dillo testified that there were several raise this contention Windham did not “Crips” gangs known as and “Bloods” of the to court. petition his the district place. crimes in the area where the took objected in- petition, to the that Windham gang Ninety-five percent of these members given jury regarding infer- to the struction Delga- Most male. Detective are black. are be from Adams’ failure to ences to drawn engage “paybacks,” gangs dillo that stated however, object, to testify. did not Windham behavior, gangs against rival or retributive that Adams the trial court’s determination wronged. is De when one of their cohorts of her unavailable because assertion was regarding Delgadillo testified tective or to right to remain silent her constitutional membership gang. Crips in the Woods’s prelim- court’s decision to admit Adams’s stand, Delgadillo prose was on the While testimony. inary hearing Because Windham photo belonging album to cutor introduced a appeal, the first on raises this for time issue “Crip Fo Life” which was inscribed Woods not contention that will address his we writings pho and which contained other witness right to confront Sixth Amendment No indicating gang affiliation. tos Woods’s Belgarde was See v. Mon- Adams violated. was evidence was introduced Windham Cir.1997) (9th tana, 1210, 1216 123 F.3d Crips. of the member (“Habeas claims that are not raised cog- the district court are petition before argues Windham also trial appeal”). nizable prelimi- admitting Jonathan Reed’s erred present nary hearing testimony that he was V foot, Barkus in the Walker shot when he was contends that were also Eugene Woods and Windham process right a fundamen his due to denied that this evidence present. Windham claims tally trial court admitted fair trial when the jury. unduly prejudiced the prosecution’s tending support the evidence theory.” no au “gang involvement We have evidence The introduced of a thority alleged violations to review Crips gang involvement in Woods’s evidentiary in a federal habeas rules state’s as- prove that the motive for the order to Kamp, v. Van de proceeding. See Jammal to retaliate on Allen and Johnson was saults (9th Cir.1991). Our role F.2d Bloods, Walker, of the a member determining the admission whether limited Barkus, Crips. of the a member his attack on trial so fundamen rendered the of evidence ruled that the evidence The trial court tally process. unfair as violate due by gang members since retaliation relevant Christensen, 1425, 1430 Reiger 789 F.2d gang was cen- members for attacks rival (9th Cir.1986). admission of “other acts” The theory of the case. prosecution’s tral to evidence, is un a defendant contends which agreed. It Appeal The Court California process only violate due duly prejudicial, will awas mem- “evidence that Woods held that permissible inferences are no when “there prove his relevant gang ber of the evidence.” jury may draw from perpetrator as and to establish identity Thus, Jammal, whether or 926 F.2d at 920. committing offenses.” Woods motive contrary admission of evidence not the Windham, (Cal.Ct.App. No. C010320 evidence, ruling court’s rule of a trial 1992) (unpublished). California Aug. process the evi unless does not violate due concluded that trial Appeal necessarily pre quality as is “of such dence finding its discretion court did not abuse Kealohapauole Shimo vents a fair trial.” Cir.1986). (9th of this evidence da, 1463, 1465 probative value that the *12 1104 identity outweighed prejudi- consequences originally

motive and its ble of the crime con- cial effect. See id. templated. prosecuted accomplice as an Windham was Sandstrom, charged the defendant was Delgadillo’s testimony of Woods. Detective objection, jury with murder. Over was regarding was Woods’s motive admissible presumes instructed that law that a “[t]he partici- demonstrate Windham’s motive for person ordinary consequences intends the of

pating alleged in the crimes. Reed’s testi- voluntary acts.” Id. at 99 S.Ct. 2450. mony was sufficient to create a reasonable The court reversed because it concluded that regarding Windham’s in ac- inference motive juror easily “a reasonable could have viewed they companying his codefendants as mandatory.” such an instruction as Id. at searched for and assaulted Allen and Walker Sandstrom, 515, 99 S.Ct. 2450. In the Court Johnson. This inference was “relevant to a question did not have before it the of an (i.e., consequence” fact of the motive of the liability aider and abettor’s for acts of defendant) only imper- and did not “lead originally agreed confederate that were not missible inferences about the defendant’s upon, probable but which are the natural and Rees, McKinney character.” Moreover, consequences of such conduct. (9th Cir.1993). Therefore, the admis- given jury the instruction to the did not shift testimony regarding sion of the Woods’s proving the burden from the gang presence involvement and Windham’s requisite contemplated intent for the of- during shooting assault on Barkus did fense, a felonious assault. right not process. violate Windham’s to due jury properly instructed that if it

VI persuaded beyond a reasonable doubt guilty that Windham was an as aider and Windham asserts that certain of the contemplated abettor of the felonious as- trial deprived court’s instructions him of due saults that were committed First, members process. he contends that the court gang, of a rival he would be for instructing liable person erred that a probable consequences charged natural and of those as aider and abettor of a crime planned reading that his confederates to commit acts. The trial court did not err any also liable for other crime that was the jury. 3.02 to the CALJIC probable consequence natural and of the Windham also maintains that the tri originally contemplated crime.1 al court erred in its instruction on the refusal Windham contends that the natural and testify. gave of a witness to The trial court probable consequences doctrine set forth in following jury: instruction to the “When mandatory presump- CALJIC 3.02 created matter, any testify witness refuses to tion this case that he was an aider and relying privilege against on the constitutional abettor and shifted from the State its burden self-incrimination, you must not draw from proving each element of an offense. He privilege any the exercise of such inference Montana, relies on Sandstrom v. believability as to the of the witness or as to (1979). L.Ed.2d 39 His guilt or innocence of the defendant.” misplaced. reliance on Sandstrom is Wind- not contend that in- does requirement ham has confused that an Instead, struction misstates the law. he ar- aider and abettor intend to commit the con- gues crime, given that the trial court should have templated liability with the vicarious incorporated imposed an aider modified instruction that and abettor for the acts proba- reasoning Appeal his cohorts that are the natural and of the California Court of knowingly intentionally 1. The trial instructed the as follows on aided and abetted. probable consequences the natural and doctrine You must determine whether the defendant is as then in CALJIC contained 3.02: guilty originally contemplated, of the crime and, so, charged if whether the crime only guilty One who aids and abets proba- Counts One and Two was a natural and particular knowledge crime that to his consequence originally contemplat- contemplating committing, ble of such confederates are proba- ed crime. but he is also liable for the natural and consequences any ble criminal act that he CALJIC3.02 was revised in 1992.

H05 Garner, strong “Because of the evidence People words: District in Second Cal.Rptr. possible multiple reasons Cal.App.3d guilt and the the court held that CALJIC In that matter privilege, Adams’ decision to assert the pres “entirely unwarranted 2.25 was *13 2.25 giving No. was harm- error in CALJIC 938, Id. 255 Cal. unique context.” at ent beyond reasonable doubt.” Woods less a Rptr. 257. Windham, (Cal.Ct.App., No. C010320 ' Gamer, 24,1992) presented Aug. (unpublished). only evidence In the in prosecution a homicide case was the court, Eugenia In matter before this the transcript the tes autopsy report and the preliminary hearing. at the Adams testified at produced the timony of sole witness the trial, she told members of the defense Before 937, hearing. 255 Id. at Cal. preliminary preliminary had lied at the team that she testify at The refused to Rptr. 257. witness reprisal from the out of fear of dis- hearing prosecutor he the that He informed trial. attorney’s She stated that she trict office. at the defendant had when he identified lied custody of her would lose feared that she hearing. He the preliminary advised the identify had failed to Windham. children she testify he would not that prosecutor pursuant to the testify at trial She refused to charge him prosecutor the to permit it would ' Fifth Amendment. 938, Cal.Rptr. perjury. id. at 255 with in an testified under oath case are 257. The witness The in the Gamer relevant facts that had lied at the proceeding he in-eamera readily present in distinguishable from those hearing. prosecutor The asked preliminary Here, the appeal. defendants Windham’s permit to the witness to assert the court impeach to Adams’s testi- presented evidence jury. presence of the the privilege outside A in- mony implicating Windham. defense prosecutor’s the mo trial court denied The him that vestigator that Adams told testified to refuse court allowed the witness tion. The brought the Franklin person a named Sean testify, or submit to cross-examination to to Thus, unlike the situa- gun her residence. right asserting concerning his reason Gamer, jury the received evidence in tion 939, id. at 255 Cal. remain silent. See prelimi- directly Adams’s contradicted Rptr. 257. testimony. important nary hearing Another read, testimony the After the witness’s Gamer, only one wit- in distinction jury immediately gave the the same court testimony implicated defendant. ness’s given jury in the instant instruction other witnesses judice, sub In the matter repeated admonition was later matter. That the crimes. Windham to connected gave its final instructions when the a Adams told also shows that record jury. See id. trial that investigator day before defense opening argument, In his to her respect with been threatened she had jury not argued should consider that the testimony, someone had and that proposed weigh in of the Fifth Amendment invocation Here, unlike the her home. fired a shot at repeated credibility. He ing the witness’s Gamer, there more than circumstances closing argument. See id. point in his refusal to testi- for Adams’s explanation one that the re Garner The court concluded fy- testify, and “the fusal of witness repeated CALJIC No. 2.25 admoni court’s corpus petitioner seeking A jury from de effectively precluded the tions alleged er must demonstrate relief ever, when, one witness termining if injurious effect or ror had substantial truthfully.” at speaking Id. him determining jury’s verdict. influence 941, reversing the In Cal.Rptr. 257. 255 619, Abrahamson, at 507 U.S. See Brecht conviction, rely on court did the Gamer of the Fifth Amend clause the confrontation that the demonstrate failed to Windham has reviewing federal decision. ment or 2.25 had substantial CALJIC giving of appeal, on direct conviction Windham’s verdict. jury’s influence on the Third Appeal for the California asserts that further It distinguished Gamer. Appellate District in- it when failed to erred state trial court in these analysis this issue its summarized 1106 957, 965, sponte all lesser in-

struct the sua S.Ct. Dubose, (1991); degree, of murder in the first cluded offenses L.Ed.2d 836 United States v. (9th Cir.1998). and that violated his this omission Sixth 146 F.3d Howev- rights to a trial er, Fourteenth Amendment a criminal sentence is deemed unconstitu- process. disagree. and due We Under the grossly dispropor- if tional it is extreme and circuit, the failure of a state trial law of this tionate to the crime which the defendant court to on lesser included offenses instruct Dubose, has been convicted. See 146 F.3d at non-capital present case does not Harmelin, (citing 501 U.S. at question. federal constitutional See Turner 2680); Belgarde, 123 F.3d at 1215. The (9th Cir.1995). Marshall, constitutionality aof sentence is determined *14 (1) by analyzing gravity three factors: the of Additionally, seeks Windham rever penalty; the offense and the harshness of the ground jury sal on the that the trial court’s (2) comparison the with the sentences im- theory instructions omitted the defendant’s posed jurisdic- in on other criminals the same not the case. This issue was raised (3) tion; appropriate, compari- and where corpus petition. Windham’s habeas There imposed son with sentences for commission fore, cognizable appeal. this claim is not on jurisdictions. of the same crime in other See Montana, Belgarde at See v. 123 F.3d 569, McDougherty, United States v. 920 F.2d (9th Cir.1990) Helm, (citing 576 VII Solem v. 463 277, 290-92, 3001, 103 77 U.S. S.Ct. L.Ed.2d alleges Eighth Windham that his (1983)). 637 right against Amendment cruel and unusual punishment grounds: was violated on three type by of harm “The is measured (1) acquitted; some of his codefendants were whether the crime was violent in nature and (2) would have convicted him of the person whether the at a offense directed many if lesser included offenses not for so Bramlett, property.” or at Cocio v. 872 F.2d (3) errors; years trial and he was nineteen (9th 889, Cir.1989). 892 Windham was con old at the time the crime was committed. murder, murder, attempted victed of solely relies on Windham the California Su- assault with a firearm. Dillon, preme People Court’s decision in v. Estelle, 263, In Rummel v. 445 U.S. 100 441, 390, Cal.Rptr. 34 Cal.3d 194 668 P.2d 1133, (1980), 63 L.Ed.2d 382 the Court (1983), support Eighth 697 of his Amend- capital noted that the context of “[o]utside Dillon, however, challenge. ment In punishment, challenges pro- successful to the Supreme California Court based its decision portionality particular sentences have been prior interpreta on its own case law and its 272, exceedingly rare.” Id. at 100 S.Ct. 1133. tion the California Constitution. Id. at has Court determined that Rummel 478-82, 390, Cal.Rptr. 194 In 668 P.2d 697. proposition “stands for federal reviewing prisoner’s challenge a state to his legis- ‘reluctan[t] courts should be to review conviction, apply we must federal law. See ” latively imprisonment.’ mandated terms of (9th Wilson, 61, Frias v. 373 F.2d 62 Cir. Davis, 370, 374, Hutto v. 454 U.S. 102 S.Ct. (“Of 1967) may apply course a state court 703, Rummel, (1982), citing 70 L.Ed.2d 556 more liberal than standards those declared 274, 445 at 100 Court; U.S. S.Ct. 1133. See also however, by the issue in U.S., 386, 392, 1280, Gore v. 78 S.Ct. judged by a federal court remains whether petitioner federal standards was accorded guarantees the minimum afforded law, punishment Under California Constitution.”). United States persons second-degree all mur convicted years der is fifteen to life. Pen.Code Cal. We review a contention that a “Generally, long § 190. as as the sentence punishment Eighth violates the Amend imposed on the defendant does not exceed punish ment’s ban cruel and unusual limits, Eslaminia, statutory we will overturn it not on ment de novo. See 136 F.3d at eighth grounds.” Eighth amendment United States 1236. The Amendment of the federal (9th Zavala-Serra, proportionali constitution does not contain a Cir.1988). ty guarantee. Michigan, light Harmelin v. of the fact that Windham FERNANDEZ, dissenting: Judge Circuit killing hu- of another abetted the aided and the same he received being, and that man (1) prosecu- things are certain: Three persons all California imposed on sentence against women peremptories tor did exercise murder, his second-degree sen- commit who account of their sex and violation not cruel life was years of fifteen tence Constitution, plain J.E.B. which made unusual. Alabama, U.S. (1994) L.Ed.2d and United VIII Gross, F.2d 1442-43 De States v. that the Cal also contends Cir.1992); (2) Windham (9th procedurally de- adopt an Appeal did not (3) claim; ifornia Court has the State faulted on that trial erro remedy for the court’s appropriate de- procedural default never asserted the to the aider instruction neous proceedings. fense in these be convicted of second- and abettor could saying that I am about While concerned has perpetrator degree murder where grant corpus a writ of we should Be first-degree murder. convicted of been solely obviously guilty defendant concluded that cause California pro- has to raise a the State never bothered erroneous, re it trial court’s instruction was *15 defense, of- untoward results cedural default first-degree murder con duced Windham’s good de- the waiver of otherwise ten follow adjust second-degree murder and viction (?) of an That one of the defects fenses. years to 15 life. Under his sentence to ed adversarial, sys- inquisitorial, rather than an law, appellate “may court re an California Moreover, I how justice. of cannot see tem affirm, ... verse, modify judgment ap or dignity, prop- or we would offend State’s from, degree pealed or reduce the evil, paternalis- did not agate any other if we (em § 1260 ...” Code Cal.Penal offense. has tically the State raise a in which defense added). phasis Criminals, like any expressed interest. corpus relief is “unavailable waivers; Habeas Windham, to their are often held applica- interpretation in or alleged eiTor be to its. We have the State should held Cupp, 768 v. of state law.” Middleton tion v. Brown past. so in often done Cir.1985). (9th 1083, Cir.1993); 1085 Whether (9th F.2d Maass, 914, 11 914 F.3d appli- in its Appeal (9th erred 353, California Court of Rison, F.2d 355 v. 894 Francis question of state 1260 is a 883, cation section Cir.1990); Keeney, v. F.2d 826 Grooms that cannot review. (9th law we Cir.1987); Cupp, v. 693 Batchelor 885 (9th Cir.1982); 859, see F.2d 863-64

CONCLUSION 12, Smith, 454, n. 101 451 468 Estelle v. U.S. (1981), 12, n. L.Ed.2d 359 68 S.Ct. urged has us to reverse Estelle, 602 reasoning v. Smith adopting cumulative effect of contends that the he (5th Cir.1979); v. Jenkins 708 n. 19 petition compel F.2d in his alleged errors set forth Anderson, 234 n. 447 U.S. corpus relief in this granting of habeas (1980). As we n. has to demonstrate failed matter. Windham 1457, 1461 Ryan, 959 F.2d in Harmon v. him of said deprived the State (9th Cir.1992), “ordinarily,” proce a claimed rights. We decline federal constitutional considered, if the will not be dural default gender discrimination merits of reach the compliance in an interest fails to assert barred. state procedurally it claim because petitioner’s procedural rules However, not had the with its has because Windham ever proceedings. If there attempt federal to demonstrate opportunity extraordinary at this late case any prejudice could be for his default and cause question, this stage proceedings, which I resulted, we direct the district has extraordinary only thing prior is not it. The one opportunity to do so him the afford very paradigm is that it is the this case reach about determining it should whether discriminatory peremptories. use of gender claim. of his discrimination merits prior cases bypass our I would not part in part, in VACATED AFFIRMED Thomp- Boyd v. in upon decision relying our with directions. (9th Cir.1998). son, That case Albee; EVANOW; Phillip

dealt a situation where the district court with David Raymond Dunham, procedural saw the existence of a Plaintiffs- default Appellees, reading corpus petition, from the habeas petition then raised the issue before the upon at 1127. ever served the state. See id. tackle, NEPTUNE, tug, engines, Nevertheless, her approved of that.

We M/V rem; machinery etc., Barge not, have, & KRS state had and could not waived the tackle, machinery, 160-6, engines, her issue. To the extent that our decision can be rem; etc., Tug Barge Compa Dahl & extending read as to cases where the Co., Inc.; ny; Tug Barge & Port issue, Gardner merely has waived the it is dicta.1 I Inc.; Build Marine Tacoma Boat KRS metamorphose would not that dicta into a ing Company, Defendants-Appellants. did, holding, and if I I would not extend it to appellate courts.2 Albee; Evanow; Raymond Phillip David I realize that the has de Dunham, Plaintiffs-Appellants, question clined to answer the of whether a appeals court of can raise the issue sua Cain, 87,-, sponte. See Trest v. tug, engines, tackle, Neptune, a her M/V 478, 480, 139 I L.Ed.2d etc., rem; machinery Barge & KRS agree with the Eleventh Circuit we 160-6, tackle, machinery, engines, her justified,” “should assume that the waiver is etc., rem; Barge Compa Tug Dahl & important and that “there is no federal inter Co., Inc.; ny; Tug Barge Port Gardner & *16 raising sponte. Esslinger est” in it sua v. Inc.; Marine Boat Build KRS Tacoma (11th Cir.1995).3

Davis, 44 F.3d ing Company, Defendants-Appellees. Thus, if I would answer no.4 And we can 97-35248, Nos. 97-35249. it, not, I raise but need would not. Appeals, United States Court

Thus, respectfully I dissent. Ninth Circuit. Argued Sept. 1998. Submitted Decided Dec. 1998. course, may procedural sponte. 1. Of waiver silence waived default issue sua our doctrines Boyd, Also, be somewhat academic in the future. See agree courts do with its ultimate other F.3d at 1127n. 4. See, holding. e.g., Magouirk Phillips, 144 F.3d (5th Cir.1998). 358-59 & n. 2 especially 2. I am not moved the fact that procedural appears on the face of the default appeals courts of have held to the con 4.Two always appear, state court record. Must not it so Freeman, trary. independent Hull v. 932 F.2d 164- rely upon that if we are to as an (3d 1991); ground? Murphy, Cir. Galowski (7th 1989). Cir. Neither one actu 634 n. dealing I realize that the Eleventh Circuit was procedural grounds. ally default denied relief on with a case where the district court raised