HALE v. CALIFORNIA
United States Court of Appeals, Ninth Circuit
534
Thе state court did not commit constitutional error by excluding the impeachment evidence related to Lisa V. Rather, the court permissibly evaluatеd the “probative value [and] the potential adverse effects of admitting the defense evidence.” Holmes v. South Carolina, 547 U.S. 319, 329, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). This discretionary balancing was neither cоntrary to, nor an unreasonable application of, clearly established federal law. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009).
II
The California Court of Appeal reasonably сoncluded that the prosecutor‘s closing argument did not deprive Hale of due process. To rise to the level of a due process violаtion, a prosecutor‘s closing argument must be more than “improper“—it must “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of duе process.” Darden v. Wainwright, 477 U.S. 168, 180-81, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citation omitted). Considered as a whole, and in light of the trial court‘s repeated admonishments to the jury that the attorneys’ arguments did not сonstitute evidence, the prosecutor‘s closing argument did not render the entire trial fundamentally unfair. United States v. Kerr, 981 F.2d 1050, 1053-54 (9th Cir. 1992).
Further, even if the prosecutor‘s argument amountеd to a due process violation, any error was harmless. Hale confessed to the sexual assault consistent with the allegations of the three victims. Further, this was one of the rare rape cases in which there is physical evidence of prior sexual penetration. Thus, given the strength of the state‘s case, any improper argument did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted).
III
Hale briefed two uncertified issues, which wе interpret as a request to expand the certificate of appealability (“COA“). However, his arguments on both issues are foreclosed by the Cаlifornia Court of Appeal‘s interpretation of state law and thus cannot provide a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.“). We therefore decline to expand the COA to reach the uncertified issues. See
AFFIRMED.
Steven PECK; et al., Plaintiffs-Appellants, v. Margaret HINCHEY, individually and in her official capacity as a peace officer with the Arizona Attorney General‘s Office; et al., Defendants-Appellees.
No. 14-15526, No. 14-15717
United States Court of Appeals, Ninth Circuit
FILED June 16, 2016
As Amended on Denial of Rehearing July 12, 2016
535
Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN, Senior District Judge.
Argued and Submitted March 16, 2016 San Francisco, California
Scot Claus, Dickinson Wright/Mariscal Weeks, Phoenix, AZ, for Defendants-Appellees Margaret Hinchey, individually and in her оfficial capacity as a peace officer with the Arizona Attorney General‘s Office (Case Nos. 14-15526, 14-15717), City of Phoenix, a municipal corporation (Case No. 14-15526).
Michele M. Iafrate, Attorney, Iafrate & Associates, Phoenix, AZ, for Defendants-Appellees Paula Veach, individually and in
MEMORANDUM**
Plaintiff-appellants are Phoenix Police Depаrtment (“PPD“) officers who were subjected to a criminal investigation. After the charges against them were dismissed, they filed suit against the internal investigator, Paula Veach, and the state investigator, Margaret Hinchey, for various claims under
1. We review the decision on the motion to dismiss de novo. See Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). Under Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 1505-07, 182 L.Ed.2d 593 (2012), grand jury witnesses have absolute immunity both for their testimony аnd for “preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony.” Id. at 1507. After acknowledging that Rehberg does not extend to non-testimоnial, out-of-court fabrication of evidence, the district court concluded that Counts I, II, III, and VI were “inextricably tied” to Hinchey‘s grand jury testimony and thus barred by absolute immunity. We affirm the district court‘s decision with respect to Count VI, but reverse on Counts I, II, and III. As the district court based its dismissal of these claims on immunity grounds, we decline to address in the first instance Hinchey‘s alternative bases for dismissal of Counts I, II, and III, and leave these to the district court to consider on remand.
The district court determined that Counts I, II, and III are “inextricably tied” to Hinchey‘s grand jury testimony, because Hinchey was part of a “conspirac[y] to testify falsely.” Seе Lisker v. City of L.A., 780 F.3d 1237, 1241 (9th Cir. 2015). We disagree. Construing the complaint in the light most favorable to the plaintiffs, Counts I, II, and III are not based on allegations that Hinchey conspired to testify falsely, but rather on Hinchey‘s alleged non-testimonial, out-of-court fabrication of evidence to support criminal charges. This alleged conduct is not protected by absolute immunity. See Lisker, 780 F.3d at 1242 (denying absolute immunity and finding that police investigative notes and reports were not “inextricably tied” to testimony and “[fell] outside the protection of absolute immunity” because “police investigative materials have evidentiary value wholly apart from assisting trial testimony“).
2. Because the plaintiffs sought
3. We review de novo the district court‘s grant of summary judgment in favor of Veach. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). Plaintiffs allege two main claims against Veach: fabrication of evidence claims, see Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.“); and a malicious prosecution claim. Plaintiffs have a causation problem with respect to both the Devereaux claims and the malicious prosecution claim, as they cannot demonstrate that Veach‘s conduct directly resulted in the bringing of criminal charges against them. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (to show malicious prosecution, plaintiffs must demonstrate that state or local offiсials engaged in conduct that was “actively instrumental in causing the initiation of legal proceedings“); Devereaux, 263 F.3d at 1074-75 (plaintiffs must show that they were “subjected to criminal charges” based on fabricated evidence). The purpose of Veach‘s investigation was to determine whether the plaintiffs had violated PPD policies, not whether criminal charges could be brought. The Attorney General‘s Office was aware that Veach‘s investigation was incomplete and that the spreadsheet contained errors. The plaintiffs have not raised a genuine issue of material fact that Veach caused the plaintiffs tо be subjected to criminal charges. We therefore affirm the district court‘s grant of summary judgment in favor of Veach.
Appeals 14-15526 AFFIRMED IN PART, REVERSED AND REMANDED IN PART. The parties shall bear their own costs.
Appeals 14-15717 DISMISSED.