RICHARD JOHNSON, JR. V. NEIL MCDOWELL, No. 17-15761 (9th Cir. 2018)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD STEVEN JOHNSON, Jr., Petitioner-Appellant, No. 17-15761 D.C. No. 2:16-cv-00745-GGH v. MEMORANDUM* NEIL MCDOWELL, Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Gregory G. Hollows, Magistrate Judge, Presiding Argued and Submitted October 10, 2018 San Francisco, California Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges. Richard Johnson appeals the district court’s denial of his petition for writ of habeas corpus. The district court’s denial of a habeas petition is reviewed de novo. See Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc). We have jurisdiction under 28 U.S.C. § 2253 and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Because Johnson filed his federal habeas petition after the effective date of the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), he can prevail in federal court only if he can show the “last reasoned” state court adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); Vasquez v. Kirkland, 572 F.3d 1029, 1035 (9th Cir. 2009). If “fairminded jurists could disagree” about whether the state court correctly applied Supreme Court precedent, this court cannot grant relief under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The California Supreme Court denied Johnson’s petition for review, so the “last reasoned” decision in this case was from the California Court of Appeal on January 27, 2015. On direct appeal, Johnson argued that the manner in which the minor victim of his alleged sexual assault, A.S., testified against him at trial violated the Confrontation Clause. After giving most of her testimony on direct examination verbally, A.S. gave the remainder of her testimony, on cross and redirect examination, by listening to counsel’s questions, writing her responses on a pad of paper, and then handing the pad to the trial judge, who read the answers aloud in what the judge described as an “emotionless” manner. The California 2 Court of Appeal held that there was no Confrontation Clause violation either by A.S. turning her back on defense counsel while writing her responses or by A.S. responding to questions in writing. Johnson argues that the California Court of Appeal unreasonably applied Coy v. Iowa, 487 U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990). We disagree. The procedure used here, while unusual, presents different constitutional questions than the procedures addressed in Coy and Craig. Those cases were concerned with when and how a traumatized child witness can testify outside the presence or view of the defendant—from behind a screen and on oneway closed-circuit television, respectively. Here, A.S. was at all times visible to the defendant, defense counsel, and the jury. We do not express a view on the constitutionality of the procedure employed to obtain A.S.’s testimony. However, we hold that it was not unreasonable, within the meaning of § 2254(d)(1), for the California Court of Appeal to hold that the procedure satisfied the Confrontation Clause, as interpreted by the United States Supreme Court. AFFIRMED. 3
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