Briggs v. Hedgpeth, No. 4:2011cv03237 - Document 22 (N.D. Cal. 2013)

Court Description: ORDER Denying Petition for Writ of Habeas Corpus, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 1/22/2013. (hlkS, COURT STAFF) (Filed on 1/22/2013)
Download PDF
Briggs v. Hedgpeth Doc. 22 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARQUEZ BRIGGS, 7 Petitioner, 8 9 v. ANTHONY HEDGPETH, Warden, Respondent. _______________________________/ ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ISSUING CERTIFICATE OF APPEALABILITY 11 For the Northern District of California United States District Court 10 No. C 11-3237 PJH 12 Before the court is the petition for a writ of habeas corpus pursuant to 28 U.S.C. 13 § 2254 filed by Marquez Briggs (“Briggs”), a state prisoner. On July 8, 2011, the court 14 issued an order to show cause why a writ of habeas corpus should not issue. Respondent, 15 Warden at Salinas Valley State Prison, filed an answer and response to the order to show 16 cause. Briggs filed a traverse. The court determines that the matter is suitable for decision 17 without oral argument. Having reviewed the papers and the record, and having carefully 18 considered the arguments and the relevant legal authorities, the court DENIES the petition. 19 BACKGROUND 20 21 I. Procedural History On March 25, 2008, a jury in the Alameda County Superior Court convicted Briggs of 22 oral copulation by force in concert in violation of California Penal Code § 288a(d); sodomy 23 by force in concert in violation of California Penal Code § 286(d); and carjacking in violation 24 of California Penal Code § 215(a). The jury further found true a kidnap allegation and 25 several firearm enhancement allegations. On April 22, 2008, the court sentenced Briggs to 26 twenty-five years to life in prison, to be served consecutively to a determinate term of 20 27 years and eight months. 28 1 Briggs appealed to the California Court of Appeal, which affirmed his conviction on 2 December 30, 2009. The California Supreme Court denied review on April 14, 2010. 3 Briggs filed the instant petition on June 30, 2011. 4 II. 5 Factual Background The following summary of evidence presented at Briggs’s trial is taken directly from 6 the opinion of the court of appeal affirming the judgment. Answer, Ex. B (People v. Briggs, 7 Case No. A121332 (Cal. Ct. App. Dec. 30, 2009)). The victim, John Doe, testified he was 40 years old and had moved to the United 10 States from Mexico in 1996. In August 2004, John Doe was living with his teenage son. 11 For the Northern District of California A. 9 United States District Court 8 John Doe’s primary language was Spanish, and he could speak and read a little English. 12 Prosecution Evidence At approximately 10:00 or 11:00 p.m. on August 21, 2004, John Doe went to listen to 13 ranchera music at Fandango Latino, a Latino nightclub on San Leandro Street in Oakland. 14 He parked his truck on the street a block away from the club because the parking lot was 15 full. John Doe sat at a table by himself and consumed about six beers from the time he 16 arrived until he left the club at approximately 1:00 or 1:30 a.m. 17 Upon leaving, John Doe went to his truck and opened the passenger door to smoke 18 a cigarette. He then went around to the driver’s side and as he opened the door, he saw 19 two African-American males approaching him. The tall, slender male was carrying a .45 20 caliber or 9 millimeter handgun in his hand. The other individual was shorter and heavyset. 21 The armed male pointed the gun to John Doe’s head. 22 The men called John Doe “scrap,” cursed, and threatened him. They entered John 23 Doe’s truck and pulled John Doe inside. The thin man sat next to John Doe, and the 24 heavier man was on the passenger side. Once all three men were in the truck, the 25 assailants told John Doe “go, go,” and John Doe began driving the truck. John Doe saw a 26 patrol car and sped up so the police car would follow him, but the men had John Doe turn 27 onto a different street and the police car continued away from them. The men pointed the 28 gun at John Doe while he drove. The men directed John Doe to stop the truck by railroad 2 1 tracks and then blindfolded him. They forced John Doe to sit in the middle of the truck 2 bench seat, and the thin man began driving. The men were speaking in English and John 3 Doe could not understand most of what they were saying. 4 When the truck stopped, the men pulled John Doe out of the vehicle. The men 5 forced John Doe to kneel down and commanded him to orally copulate the slender man’s 6 penis while they held a gun above his head. John Doe complied because he felt his life 7 was in danger. John Doe was able to recover his truck keys from the thin man’s pocket 8 without his assailants noticing during the forced oral copulation. When the oral copulation 9 stopped, the men forced John Doe to lower his pants and they pushed him forward onto his hands and knees. John Doe told them, “Don’t shoot. Don’t shoot.” John Doe heard the 11 For the Northern District of California United States District Court 10 thin man spit, and then felt moisture when the thin man put his hand on John Doe’s anus. 12 The thin man first used his fingers, and then his penis, to penetrate John Doe’s anus. John 13 Doe could hear the men talking, mocking him, and laughing while he was being raped. 14 The penetration stopped because John Doe defecated on the assailant. The thin man 15 became angry and John Doe offered to clean his assailant out of fear of being shot. When 16 the thin man turned away from John Doe to begin cleaning himself, John Doe stood up, 17 took his blindfold off and began running down Foothill Boulevard. John Doe recognized a 18 school and a store as he was running, and he looked for a patrol car to ask for help. John 19 Doe lost consciousness while running away. 20 When he awoke, John Doe saw police officers and an ambulance. John Doe 21 testified he told the paramedics and police what had happened to him. He was taken to 22 Highland Hospital in the ambulance. 23 Thomas Lo, a paramedic for American Medical Response, responded to a call in the 24 area of 1627 Foothill Boulevard at around 4:00 a.m. on August 22, 2004. He found John 25 Doe lying face down in the roadway in the middle of the block. A neighborhood resident 26 who was present at the scene indicated she had called and was concerned the victim had 27 been hit by a car. Lo did not discover any obvious injuries during his examination of John 28 Doe, who had a wallet with identification indicating he was a police officer in Mexico. John 3 1 Doe was upset and hysterical, answering some questions but not others. He stated he had 2 been raped by two men, mentioned a gun, and the Fandango nightclub. In his report, Lo 3 wrote “inconsistent story” because John Doe answered only some of the questions the 4 paramedics and responding police officers asked him, and Lo testified “it just didn’t seem 5 that we could figure out what happened to him.” Lo assessed John Doe as having an 6 altered state of consciousness and testified that he had detected alcohol on John Doe’s 7 breath. Lo and his partner transported John Doe to Highland Hospital in the ambulance. 8 9 Lauri Paolinetti, a physician’s assistant at Highland Hospital, testified as an expert in sexual assault exams. Paolinetti conducted a sexual assault exam on John Doe when he was taken to Highland Hospital on August 22, 2004. In her report, she stated John Doe 11 For the Northern District of California United States District Court 10 appeared “[t]earful, distraught, tre[m]bling, anxious.” She testified John Doe stated he did 12 not consume any alcohol within 12 hours prior to the assault, but that he had used drugs 13 within 96 hours prior to the assault. John Doe described the assault to Paolinetti, and 14 complained of head, abdominal, and rectal pain. Paolinetti found dried secretions on John 15 Doe’s right hand and took samples of them. She also found “[m]ultiple fissured lesions at 9 16 o’clock at anal verge. Tender. Oozing blood.” Paolinetti examined John Doe with an 17 anoscope and noted, “[a]noscopy distal 1 centimeter 1 rectal wall with oozing 1 centimeter 18 to 2 centimeter, abrasion slash fissure. Exam difficult secondary to pain. Unable to insert 19 anoscope fully.” She collected two oral swabs, two anal swabs, and four penile swabs from 20 John Doe. She concluded the results of the examination were consistent with 21 nonconsensual rectal penetration. 22 Oakland police officer Jesse Grant testified that he was assigned John Doe’s case 23 on August 26, 2004, while working as an investigator in the special victims unit. He 24 reviewed the police report prepared by the officer who interviewed John Doe at the 25 hospital. On September 2, 2004, Grant contacted John Doe over the phone. John Doe 26 told Grant he did not want to pursue the case because “the incident had been extremely 27 painful for him and he just wanted to let it lie from there.” Grant testified he had only a 28 general description of the assailants: their height, weight, and race. He submitted the 4 1 sexual assault kit taken from the victim for processing by the crime lab. He did not conduct 2 any additional investigation at that time because of John Doe’s reluctance to pursue the 3 case and lack of suspects. 4 On January 5, 2005, Ines Iglesias-Lee a criminalist at the Oakland Police 5 Department crime laboratory, retrieved the sexual assault kit samples collected from John 6 Doe. The first sample she analyzed was a rectal swab. She conducted a test for acid 7 phosphatase which is an enzyme found in high concentrations in semen and in lower 8 concentrations in other bodily fluids. This presumptive test resulted in “a low amount of 9 reaction which may or may not indicate the possible presence of semen.” She was not able to confirm the presence of blood on the rectal swab because one of the two color tests 11 For the Northern District of California United States District Court 10 was negative. Iglesias-Lee next examined two urethral meatus swabs, which she tested for 12 the presence of acid phosphatase. One of the swabs tested negative, and the second 13 swab gave a low or slow positive result. Acid phosphatase tests on two penal swabs 14 resulted in a negative result for one swab and a slow reaction for the presence of semen on 15 the second swab. Iglesias-Lee conducted a differential extraction on a rectal swab and 16 found there were epithelial cells and sperm cells present. She then developed DNA profiles 17 from both sperm and epithelial cells. Both types of cells had come from males. The DNA 18 profile of the epithelial cells was concordant with the DNA profile of the victim, i.e. there 19 was a match at the locations of the DNA analyzed. Iglesias-Lee also examined swabs 20 taken from the victim’s right hand, and found epithelial and sperm cells. Tests on the 21 epithelial cell fraction showed there were cells from two or more people. The sperm 22 fraction from the swab typed as a mixture of no more than two people, and the major 23 portion of the mixture was concordant to the DNA profile from the sperm fraction of the 24 rectal swab. The DNA profile of the sperm cells was different from the victim’s DNA profile, 25 and Iglesias-Lee eliminated the victim as a possible contributor to the sperm cells found. 26 On May 18, 2005, Iglesias-Lee entered the DNA profile from the sperm cell fractions 27 into the Combined DNA Indexing System (CODIS) database. On July 22, 2005, 28 Iglesias-Lee received a report of a “hit” on that DNA profile from the California Department 5 1 of Justice DNA laboratory in Richmond, indicating that it corresponded with Briggs’s DNA 2 profile. Iglesias-Lee compared the profiled hit the Department of Justice provided with the 3 evidence DNA profile and noted that the types were concordant. She then requested 4 officer Grant to obtain a DNA sample from Briggs for verification. 5 In May 2006, Grant reopened the case because he received the report from the 6 Crime Lab naming Briggs as a potential suspect. Grant contacted John Doe and, with a 7 Spanish-speaking officer, on May 26 obtained a statement from John Doe and examined 8 John Doe’s truck. Grant went with John Doe to the Fandango club, and John Doe was able 9 to go to a location on East 20th Street and find the driveway alongside a house where the 11 For the Northern District of California United States District Court 10 sexual assault occurred. On November 14, 2006, Grant interviewed Briggs, who gave a taped statement. 12 Grant obtained a search warrant authorizing the taking of a DNA sample from Briggs. 13 Briggs was uncooperative and resistive, but the officers were able to get a sample from the 14 inside of his cheek. 15 Iglesias-Lee was presented by the prosecution as an expert in the fields of forensic 16 biology and DNA analysis. She testified that on November 28, 2006, Iglesias-Lee received 17 a biological reference kit from Briggs. She developed Briggs’s DNA profile from the saliva 18 samples provided, and compared that profile to the unknown sperm DNA profile she had 19 generated earlier. From this comparison, she could not exclude Briggs as being the source 20 of the sperm cells found in the rectal and hand swabs of the case. Over defense objection 21 that the testimony exceeded the scope of her expertise, Iglesias-Lee testified as to the 22 statistical significance of the DNA profile generated from the sperm cell fraction. 23 Iglesias-Lee utilized a computer program created by the FBI called Pop Stats which is an 24 element of the CODIS program, and which calculates the statistical frequency of a 25 particular DNA profile. The analysis showed the DNA profile of the semen cell fraction 26 obtained from the evidentiary samples occurs in less than 1 out of 1.5 trillion members of 27 the Caucasian, African-American, Southwest Hispanic, and Southeast Hispanic 28 populations, compared to a current world population of approximately 6.5 billion. She 6 1 further testified it was highly unlikely that DNA profile would be found by chance in another 2 person. 3 4 John Doe identified Briggs as his assailant at trial, stating he was 70 to 80 percent certain Briggs was the thin assailant. 5 B. 6 The defense called Oakland police officer Phong Tran to testify. Tran interviewed Defense Case 7 John Doe in the morning of August 22, 2004, at Highland Hospital. John Doe reported he 8 was assaulted by two African-American males after leaving the Fandango nightclub. John 9 Doe told the officer that after he was assaulted he ran back to the club for help and someone at the club called 911. John Doe told Tran that he did not know whether the 11 For the Northern District of California United States District Court 10 assailants had taken his truck. Tran wrote John Doe’s statement and John Doe signed it. 12 Tran obtained authorization for a sexual assault examination, and then went to the 13 Fandango club to try to locate John Doe’s truck and any witnesses. He did not find the 14 truck and the club was closed. 15 Defense investigator Dean Stannard testified there are multiple routes from the 16 Fandango club to the driveway on East 20th Street where John Doe was assaulted, and 17 the route Stannard drove between the two locations took him 16 minutes. On 18 cross-examination, Stannard acknowledged he was not aware which route John Doe and 19 his assailants took. Stannard also testified that paramedics found John Doe six-tenths of a 20 mile from where he lived at the time. 21 ISSUES 22 Briggs raises the following claims for federal habeas relief: 23 (1) the state court’s denial of his request for disclosure of alleged immigration 24 benefits received by prosecution witness, John Doe, violated his due process rights under 25 Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972); 26 27 (2) the state court’s refusal to allow him to cross-examine prosecution witness, John Doe, regarding the prosecution’s promises and provision of immigration benefits to Doe 28 7 1 violated his Fifth Amendment due process rights and his Sixth Amendment right of 2 confrontation; and 3 (3) the state court’s limitations regarding his ability to cross-examine the 4 prosecution’s expert witness, criminalist Ines Iglesias-Lee, regarding her understanding of a 5 statistical figure provided by a computer violated his Fifth Amendment due process rights 6 and his Sixth Amendment right of confrontation. 7 8 9 ANALYSIS I. Standard of Review A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court’s 11 For the Northern District of California United States District Court 10 adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 12 unreasonable application of, clearly established Federal law, as determined by the 13 Supreme Court of the United States; or (2) resulted in a decision that was based on an 14 unreasonable determination of the facts in light of the evidence presented in the State court 15 proceeding.” 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 16 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407–09, (2000), 17 while the second prong applies to decisions based on factual determinations, Miller–El v. 18 Cockrell, 537 U.S. 322, 340 (2003). 19 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 20 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 21 reached by [the Supreme] Court on a question of law or if the state court decides a case 22 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 23 Williams (Terry), 529 U.S. at 412–13. A state court decision is an “unreasonable 24 application of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it 25 correctly identifies the governing legal principle from the Supreme Court’s decisions but 26 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 27 federal court on habeas review may not issue the writ “simply because that court concludes 28 in its independent judgment that the relevant state-court decision applied clearly 8 1 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 2 be “objectively unreasonable” to support granting the writ. Id. at 409. 3 A state court’s determination that a claim lacks merit precludes federal habeas relief 4 so long as “fairminded jurists could disagree” on the correctness of the state court’s 5 decision. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (citing Yarborough v. 6 Alvarado, 541 U.S. 652, 664 (2004)). “[E]valuating whether a rule application [i]s 7 unreasonable requires considering the rule’s specificity. The more general the rule, the 8 more leeway courts have in reaching outcomes in case-by-case determinations.” Id. “As a 9 condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so 11 For the Northern District of California United States District Court 10 lacking in justification that there was an error well understood and comprehended in 12 existing law beyond any possibility for fairminded disagreement.” Id. 13 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 14 determination will not be overturned on factual grounds unless objectively unreasonable in 15 light of the evidence presented in the state-court proceeding.” Miller–El, 537 U.S. at 340. 16 Review under § 2254(d)(1) is limited to the record that was before the state court that 17 adjudicated the claim on the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). 18 II. Brady Claim 19 A. 20 The following summary of the trial court’s rulings on Briggs’s request to question the Trial Proceedings 21 complaining witness, John Doe, about his immigration status is taken directly from the 22 opinion of the court of appeal. Answer, Ex. B at 8-10. 23 Briggs filed a motion in limine asking for permission to examine John Doe, an 24 undocumented Mexican national, on the issue of bias arising from purported offers by 25 investigating officers to assist him in qualifying for United States residency. The 26 prosecution had previously moved in limine to exclude evidence of John Doe’s immigration 27 status under Evidence Code section 352. At the initial hearing on the defense motions, 28 defense counsel represented that during a taped interview of John Doe in 2006, one of the 9 1 investigating officers had given John Doe papers to help him qualify for residency and had 2 told John Doe that being the victim of a crime could help him in establishing residency. 3 Based on the defense offer of proof, the trial court indicated that it would allow the defense 4 to question John Doe on whether the officers told him being the victim of a crime could help 5 him qualify for residency and whether John Doe had obtained any favors from the officers. 6 The prosecutor later asked the court to reconsider its earlier rulings. The prosecutor 7 explained that she had since reviewed the tape of the interview, and that defense counsel’s 8 offer of proof was not entirely accurate, particularly as to the context of the statements 9 attributed to the police officers. She provided what were represented as verbatim excerpts of the statements. After providing officers his account of the circumstances of the attack, 11 For the Northern District of California United States District Court 10 John Doe stated, “You know I don’t have any papers here so I’m scared it will affect me.” 12 One of the officers responded, “You don’t need to worry about that.” An officer said, “I have 13 assisted people in the past . . . I have signed papers for immigration assistance and they 14 can actually qualify for residentship [sic ].” Officer Grant then stated, “Oh, yeah, definitely 15 being the victim of crime.” After that colloquy, John Doe and the officers discussed a 16 different topic. 17 The trial court observed that the prosecution’s description of the conversation 18 differed from statements defense counsel had attributed to the officers, and ruled that the 19 inquiry requested by the defense would not be permitted. The court found that the 20 statements were irrelevant, since they occurred two years after John Doe’s initial report of 21 the incident, and only following the victim’s description of the circumstances of the assault. 22 The following day defense counsel again sought permission to question John Doe 23 about his immigration status. She contended that John Doe’s willingness to pursue 24 prosecution in 2006, after his reluctance to do so in 2004, was in response to police 25 providing him with “papers to help his immigration status to obtain residency” and that the 26 inquiry was therefore relevant to show his “bias and motive.” The trial court again denied 27 the defense’s request, finding the line of questioning irrelevant because the context of the 28 10 1 interview and the circumstances under which discussion of immigration issues occurred 2 were “totally different” than represented by the defense. 3 After return of the jury verdicts, Briggs filed a motion for new trial, arguing inter alia 4 that the trial court should have allowed him to cross-examine John Doe regarding his 5 immigration status and any benefits he may have received for his cooperation in the 6 prosecution. The prosecution response denied that John Doe had obtained any assistance 7 in obtaining citizenship or that he received any other benefits or compensation in exchange 8 for his testimony, and also asserted that the Oakland Police Department did not provide 9 any “papers,” promises, or assistance to John Doe in order to obtain a statement from him. 11 For the Northern District of California United States District Court 10 The trial court denied Briggs’s motion. The court of appeal affirmed the judgment and held that the trial court’s exclusion of 12 the proffered evidence of John Doe’s immigration status, and any benefits he may have 13 received for testifying, was not an abuse of discretion and did not violate Briggs’s right of 14 confrontation. Answer, Ex. B. 15 B. 16 Briggs’s first claim for relief alleges that his due process rights were violated by the Legal Standard 17 prosecution’s failure to disclose impeachment material, which he contends was required 18 under Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation, the evidence 19 must be (1) favorable to the accused because it is either exculpatory or impeachment 20 material; (2) suppressed by the government, either willfully or inadvertently; and 21 (3) material or prejudicial.” United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004) 22 (citing Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002)). 23 Impeachment evidence is exculpatory evidence within the meaning of Brady. Id. 24 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). “Brady/Giglio information 25 includes material that bears on the credibility of a significant witness in the case.” Id. 26 (citation and quotation marks omitted). Impeachment evidence is favorable to the accused 27 under Brady/Giglio “when the reliability of the witness may be determinative of a criminal 28 defendant’s guilt or innocence.” Id. (citation and quotation marks omitted). 11 1 “‘Because the prosecution is in a unique position to obtain information known to 2 other agents of the government, it may not be excused from disclosing what it does not 3 know but could have learned.’” Id. at 388 (quoting Carriger v. Stewart, 132 F.3d 463, 480 4 (9th Cir. 1997) (en banc)). “A prosecutor’s duty under Brady necessarily requires the 5 cooperation of other government agents who might possess Brady material.” Id. 6 The terms “material” and “prejudicial” are used interchangeably to describe the third 7 component of a Brady claim. Bailey v. Rae, 339 F.3d 1107, 1116 n. 6 (9th Cir. 2003). See 8 also Benn, 283 F.3d at 1053 n. 9 (“Evidence is not ‘material’ unless it is ‘prejudicial,’ and 9 not ‘prejudicial’ unless it is ‘material’”). The “touchstone of materiality is a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). This 11 For the Northern District of California United States District Court 10 reasonable probability is “shown when the government’s evidentiary suppression 12 ‘undermines confidence in the outcome of the trial.’” Id. (quoting United States v. Bagley, 13 473 U.S. 667, 678 (1985)). A determination of materiality under the Brady standard 14 requires the evidence to be considered collectively, and in light of the strength of the 15 prosecution’s case. Kyles, 514 U.S. at 434. See also Barker v. Fleming, 423 F.3d 1085, 16 1100 (9th Cir. 2005). 17 C. Discussion 18 Briggs contends that the State’s failure to disclose impeachment evidence violated 19 his right to due process under Brady. As to the first element of a Brady claim, the proffered 20 evidence that the victim was motivated by potential immigration benefits satisfies the “low, 21 ‘favorable to the accused standard’” for impeachment material. Gantt v. Roe, 389 F.3d 22 908, 912 (9th Cir. 2004). As recognized by the court of appeal, under state law, “bias on 23 the part of a witness is a statutory basis for cross-examination.” Answer, Ex. B at 11 (citing 24 Cal. Evid. Code § 780(f)). 25 With respect to the suppression element of a Brady claim, “[t]he prosecutor’s duty to 26 disclose under Brady is limited to evidence a reasonable prosecutor would perceive at the 27 time as being material and favorable to the defense.” Woods v. Sinclair, 655 F.3d 886, 28 902-03 (9th Cir. 2011) (citing Kyles, 514 U.S. at 438). The record demonstrates that 12 1 Briggs’s trial attorney had access to and reviewed the tape of the 2006 interview when the 2 victim mentioned his immigration status to the officers, one of whom indicated that in the 3 past he had signed papers for immigration assistance. Answer, Ex. D at 128-29. Briggs 4 concedes that the officers made no promises to procure the victim’s statement in the 2006 5 interview: “[t]he officers did not specifically promise [the complaining witness] that they 6 would submit papers to the immigration authorities.” See Reply ISO Mot. Disclose and for 7 Evid. Hrg. at 3. He contends, however, that this interview should be construed as a 8 promise by the officers to provide immigration assistance if the victim testified and that the 9 prosecutor withheld evidence of immigration benefits that were bestowed upon the victim in exchange for his cooperation. 11 For the Northern District of California United States District Court 10 Briggs fails to show that evidence of immigration assistance by the officers was 12 either willfully or inadvertently withheld, as no such evidence is in the record. The court of 13 appeal found that the “prosecution denied that John Doe had obtained any assistance in 14 obtaining citizenship.” Answer, Ex. B at 10. Turning to the prosecutor’s statement in the 15 record, in a written response to Briggs’s motion for new trial, the deputy district attorney 16 addressed the speculation by the defense that the victim’s testimony was obtained “in 17 exchange for some type of help with obtaining citizenship,” and represented as follows: 18 “The People did not provide any type of assistance to the Victim in obtaining citizenship in 19 exchange for his testimony in this case. . . . The Victim did not receive any special help or 20 compensation from the Prosecution in exchange for testimony. In addition, the Oakland 21 Police Department did not provide any ‘papers’ to the Victim in exchange for his testimony.” 22 Answer, Ex. A at 314. In affirming the judgment and conviction, the court of appeal held 23 that the record “does not support a finding the prosecution withheld evidence regarding 24 John Doe’s immigration status or any benefits he may have received.” Answer, Ex. B at 25 14. 26 The state court’s determination of a factual issue made by a State court is presumed 27 to be correct, and Briggs fails to rebut the presumption of correctness by clear and 28 convincing evidence. 28 U.S.C. § 2254(e)(1). Briggs contends that the prosecutor’s 13 1 representation that the victim did not receive any consideration should not end the Brady 2 inquiry. Traverse at 4. He argues that the prosecutor may not have known if a detective 3 had prepared a U-Visa1 certification. Id. at 5. Briggs offers no facts to support this 4 supposition and the record demonstrates that the prosecutor was aware of these 5 suspicions and directly addressed them, as reflected in the court of appeal’s finding that the 6 “prosecution denied that John Doe had obtained any assistance in obtaining citizenship.” 7 Answer, Ex. B at 10. The court of appeal also noted that Briggs raised a challenge to the 8 trial court’s acceptance of the prosecutor’s unsworn statement as true, but held that “[t]he 9 disclaimer of promises or benefits to the victim is nevertheless a representation made by an officer of the court, who has a duty of honesty and candor.” Answer, Ex. B at 14 n.10 11 For the Northern District of California United States District Court 10 (citing Rules Prof. Conduct, Rule 5-200; Batt v. City and Co. of San Francisco, 155 Cal. 12 App. 4th 65, 82 n.9 (2007)). In light of the evidence in the record, the court of appeal’s 13 factual determination that there was no Brady violation was not objectively unreasonable. 14 28 U.S.C. § 2254(d)(2). 15 Briggs also contends that, as a matter of law, the court of appeal erroneously held 16 that the trial court must accept the prosecutor’s statement that all exculpatory evidence had 17 been disclosed, arguing that the Supreme Court would not have had occasion to decide 18 Brady and its progeny if the prosecution always disclosed all exculpatory evidence. 19 Traverse at 4-5. The Supreme Court has held, however, that “[u]nless defense counsel 20 becomes aware that other exculpatory evidence was withheld and brings it to the court’s 21 attention, the prosecutor’s decision on disclosure is final. Defense counsel has no 22 constitutional right to conduct his own search of the State’s files to argue relevance.” 23 Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (footnote omitted). 24 25 1 26 27 28 Pursuant to 8 C.F.R. § 214.14, an undocumented alien is eligible for U-1 nonimmigrant status if, among other things, he is the victim of rape or other qualifying criminal activity that occurred in the United States, and cooperates in the prosecution of the crime. For a discussion of the statutory and regulatory background of the “U” nonimmigrant classification, see Catholic Charities CYO v. Chertoff, 622 F. Supp. 2d 865, 870 (N.D. Cal. 2008), aff’d sub nom. Catholic Charities CYO v. Napolitano, 368 Fed. Appx. 750 (9th Cir. 2010). 14 1 Briggs cites no clearly established federal law, and the court is aware of none, that all Brady material to ensure whether the prosecution has satisfied its Brady obligations. 4 See Kyles, 514 U.S. at 437 (“the prosecution, which alone can know what is undisclosed, 5 must be assigned the consequent responsibility to gauge the likely net effect of all such 6 evidence and make disclosure when the point of ‘reasonable probability’ is reached”). 7 Briggs argues that the court of appeal misapplied state law by holding that the trial court 8 must accept the prosecutor’s word as true, citing In re Steele, 32 Cal. 4th 682 (2004). 9 Traverse at 4-5. This argument fails to support a Brady claim because an alleged error of 10 state law is not a ground for habeas relief. See Swarthout v. Cooke, 131 S. Ct. 859, 861 11 For the Northern District of California requires the trial court to go beyond the prosecution’s representations that it has disclosed 3 United States District Court 2 (2011) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Furthermore, the court 12 determines that Briggs’s argument is based on a misreading of Steele, where the California 13 Supreme Court reaffirmed the principle that “prosecutors have a continuing duty to disclose 14 information favorable to the defense, and we expect and assume that they will perform this 15 duty promptly and fully, and, moreover, that ‘it is presumed that official duty has been 16 regularly performed.’” Steele, 32 Cal. 4th at 694 (citing People v. Gonzalez, 51 Cal. 3d 17 1179, 1260-61 (1990); Evid. Code § 664). In Steele, the court held that under California 18 Penal Code section 1054.9, a defendant is entitled to postconviction discovery of “materials 19 ‘in the possession of the prosecution and law enforcement authorities,’ which we take to 20 mean in their possession currently[, . . . and] materials to which ‘defendant would have 21 been entitled at time of trial’ but does not currently possess.” Id. at 695. The court in 22 Steele clearly held, however, that the statutory right to postconviction discovery “does not 23 allow ‘free-floating’ discovery asking for virtually anything the prosecution possesses.” Id. 24 Steele explained that “the expectation and assumption we stated in Gonzalez merely mean 25 that normally, and unless the defendant overcomes Evidence Code section 664’s 26 presumption as to specific evidence, there will be no discovery for the trial court to order 27 that the prosecutor should have provided at trial.” Id. at 694. Thus, Steele does not 28 15 1 support Briggs’s argument that the court of appeal erred by relying on the prosecutor’s 2 statement in the record that the victim did not obtain assistance in obtaining citizenship. 3 Briggs fails to show that the prosecutor suppressed any purported impeachment 4 evidence. Because Briggs fails to satisfy the suppression element in support of his Brady 5 claim, the court need not reach the question of materiality. The court of appeal’s 6 determination that there was no Brady violation was neither contrary to, nor an 7 unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). The 8 claim seeking habeas relief for a Brady violation is therefore DENIED. 9 11 For the Northern District of California United States District Court 10 D. Request to Expand the Record 1. Request for Evidentiary Hearing Briggs requests an evidentiary hearing to cross-examine government agents and 12 law enforcement officials about the benefits that the victim received in support of his Brady 13 claim. Briggs contends that he was not afforded the opportunity to develop the record as to 14 the immigration benefits that the federal government provided to the victim, and argues that 15 the court would not be able to weigh and determine any prejudicial effect of non-disclosure 16 without having a factual record of what benefits were actually conferred on the victim. 17 In opposition to Briggs’s request for an evidentiary hearing, respondent contends 18 that Briggs did not diligently seek to expand the record on his Brady claim by pursuing 19 collateral relief in state court. Prisoners in state custody who wish to challenge collaterally 20 in federal habeas proceedings either the fact or length of their confinement are first 21 required to exhaust state judicial remedies, either on direct appeal or through collateral 22 proceedings, by presenting the highest state court available with a fair opportunity to rule 23 on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. 24 § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 25 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state’s 26 highest court must be given an opportunity to rule on the claims even if review is 27 discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke 28 “one complete round of the State’s established appellate review process.”). 16 1 Exhaustion of claims does not require repeated assertions if a federal claim is 2 actually considered at least once on the merits by the state’s highest court, even where 3 alternative avenues of review are still available in state court. See Castille v. Peoples, 489 4 U.S. 346, 350 (1989); Greene v. Lambert, 288 F.3d 1081, 1086-87 (9th Cir. 2002). Here, 5 Briggs complied with the fair presentation requirement by raising his Brady claim at every 6 level of state appellate review. Briggs was not, therefore, required to seek collateral relief 7 in state court before pursuing federal habeas relief. Briggs is not, however, entitled to an 8 evidentiary hearing on his Brady claim. 9 On habeas review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), an evidentiary hearing is warranted where the petitioner establishes a colorable 11 For the Northern District of California United States District Court 10 claim for relief and was not afforded a hearing in state court on the claim. Earp v. Ornoski, 12 431 F.3d 1158, 1167 (9th Cir. 2005); 28 U.S.C. § 2254(d) and (e)(2). “In other words, a 13 hearing is required if: ‘(1) [the defendant] has alleged facts that, if proven, would entitle him 14 to habeas relief, and (2) he did not receive a full and fair opportunity to develop those 15 facts.’” Earp, 431 F.3d at 1167 (quoting Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 16 2004)). “In deciding whether to grant an evidentiary hearing, a federal court must consider 17 whether such a hearing could enable an applicant to prove the petition’s factual allegations, 18 which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 19 U.S. 465, 474 (2007). When “the record refutes the applicant’s factual allegations or 20 otherwise precludes habeas relief, a district court is not required to hold an evidentiary 21 hearing.” Id. “[A]n evidentiary hearing is not required on issues that can be resolved by 22 reference to the state court record.” Id. See also Hibbler v. Benedetti, 693 F.3d 1140, 23 1147 (9th Cir. 2012) (holding that state court’s denial of prisoner’s motion for evidentiary 24 hearing to determine whether he was competent at time he entered his guilty plea was not 25 objectively unreasonable), petition for certiorari filed Dec. 6, 2012. 26 As discussed above, the record does not support a finding of suppression by the 27 prosecutor and does not substantiate a colorable Brady claim. Cf. Insyxiengmay v. 28 Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005) (remanding a Confrontation Clause habeas 17 1 claim for an evidentiary hearing where both the defendant and his counsel were barred 2 from an in camera hearing with a confidential informant, and the court prohibited defense 3 counsel from informing the defendant of the hearing, as well as the existence of the 4 confidential informant). An evidentiary hearing is therefore not warranted under AEDPA. 5 2. 6 Motion for Disclosure of Immigration Benefits Briggs also seeks discovery of government benefits provided to the victim. A 7 habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery 8 as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). 9 However, Rule 6(a) of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, provides that a “judge may, for good cause, authorize a party to conduct discovery 11 For the Northern District of California United States District Court 10 under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Before 12 deciding whether a petitioner is entitled to discovery under Rule 6(a) the court must first 13 identify the essential elements of the underlying claim. See Bracy, 520 U.S. at 904 14 (difficulties of proof aside, petitioner’s allegation of judicial bias, if proved, would violate due 15 process clause). The court must then determine whether the petitioner has shown “good 16 cause” for appropriate discovery to prove his claim. See id. Good cause for discovery 17 under Rule 6(a) is shown “‘where specific allegations before the court show reason to 18 believe that the petitioner may, if the facts are fully developed, be able to demonstrate that 19 he is . . . entitled to relief . . . .’” Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 20 (1969)); Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005). 21 Having determined that Briggs fails to demonstrate that he is entitled to habeas relief 22 on his Brady claim, and having further found no error in the state court’s factual 23 determination that there were no immigration benefits bestowed upon Briggs, the court 24 denies his motion for an order requiring disclosure of government benefits given to the 25 victim. 26 III. 27 28 Right to Cross-Examine Victim Briggs seeks habeas relief on the related but separate ground that the trial court’s denial of his request to cross-examine the victim about his immigration status and denial of 18 1 his motion for new trial violated his right to due process and the right of confrontation. This 2 Confrontation Clause claim concerns the officers’ statements about the availability of 3 immigration benefits to crime victims that are at issue in the related Brady claim. The court 4 determines that the preclusion of cross-examination about the victim’s immigration status 5 and the availability of immigration benefits violated Briggs’s right of confrontation, but that 6 this error was harmless. 7 A. 8 The Confrontation Clause of the Sixth Amendment guarantees a defendant in a Legal Standard Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Murdoch v. Castro, 609 F.3d 983, 989 (9th 11 For the Northern District of California criminal case an opportunity for effective cross-examination of the witnesses against him. 10 United States District Court 9 Cir. 2010) (en banc), cert. denied, 131 S. Ct. 2442, reh’g denied, 132 S. Ct. 47 (2011). 12 “A criminal defendant can prove a violation of his Sixth Amendment rights by 13 ‘showing that he was prohibited from engaging in otherwise appropriate cross-examination 14 designed to show a prototypical form of bias on the part of the witness, and thereby to 15 expose to the jury the facts from which jurors . . . could appropriately draw inferences 16 relating to the reliability of the witness.’” Holley v. Yarborough, 568 F.3d 1091, 1098 (9th 17 Cir. 2009) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)) (internal quotation 18 marks omitted). “However, ‘it does not follow, of course, that the Confrontation Clause of 19 the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s 20 inquiry into the potential bias of a prosecution witness.’” Id. (quoting Van Arsdall, 475 U.S. 21 at 679). “On the contrary, the right to cross-examination may, in appropriate cases, bow to 22 accommodate other legitimate interests in the criminal trial process.” Id. (citations and 23 quotation marks omitted). As the Supreme Court recognized in Van Arsdall, “trial judges 24 retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable 25 limits on such cross-examination based on concerns about, among other things, 26 harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is 27 repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. “Any such ‘restrictions 28 on a criminal defendant's rights to confront adverse witnesses,’ however, ‘may not be 19 1 arbitrary or disproportionate to the purposes they are designed to serve.’” Ortiz v. Yates, – 2 F.3d —, 2012 WL 6052251 (9th Cir. Dec. 6, 2012) (quoting Michigan v. Lucas, 500 U.S. 3 145, 151 (1991)) (internal citation and quotation marks omitted). cross-examine an adverse witness violates the Sixth Amendment right of confrontation 6 under Lucas, the court must make a two-part inquiry. Ortiz, 2012 WL 6052251 at *7 (citing 7 Fowler v. Sacramento Co. Sheriff’s Dept., 421 F.3d 1027, 1038 (9th Cir. 2005)). “First, we 8 ask ‘whether the proffered cross-examination sufficiently bore upon the witness’ reliability 9 or credibility such that a jury might reasonably have questioned it.’” Id. If the first element 10 is satisfied, the court must then consider “‘whether the trial court's preclusion of this cross 11 For the Northern District of California To determine whether the trial court’s restriction on a defendant’s ability to 5 United States District Court 4 examination was unreasonable, arbitrary or disproportionate’ in light of any ‘countervailing 12 interests’ justifying preclusion, such as ‘waste of time, confusion and prejudice.’” Id. 13 (quoting Fowler, 421 F.3d at 1038, 1040). 14 Even where a violation of the Confrontation Clause is found, the court must assess 15 whether the error had prejudicial impact under Brecht v. Abrahamson, 507 U.S. 619, 623 16 (1993). Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011), cert. denied, 133 S. Ct. 102 17 (2012). Under harmless error analysis, “[h]abeas relief is warranted only if the error had a 18 ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Id. (quoting 19 Brecht, 507 U.S. at 637–38). To determine whether a violation of the Confrontation Clause 20 had “substantial and injurious effect,” the court applies the five non-exclusive factors set 21 forth in Van Arsdall: (1) the importance of the witness’ testimony in the prosecution’s case; 22 (2) whether the testimony was cumulative; (3) the presence or absence of evidence 23 corroborating or contradicting the testimony of the witness on material points; (4) the extent 24 of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s 25 case. Id. (citing Van Arsdall, 475 U.S. at 679). 26 27 B. Discussion 1. Right of Confrontation 28 20 1 Briggs contends that the trial court’s exclusion of impeachment evidence, about 2 immigration benefits that the victim was offered or obtained, violated his right of 3 confrontation. He argues that the officers’ promises to help the victim seek immigration 4 benefits were relevant to show bias because “[t]hese promises of benefits would have had 5 a significant effect in inducing [the victim] to actually testify when he was previously 6 uninterested in pursuing the case.” Pet. at m-6. The court of appeal, however, determined 7 that any such promises were irrelevant because they occurred two years after the victim’s 8 initial report of the incident, and only after the victim gave his description of the 9 circumstances of the assault. Answer, Ex. B at 9. At trial, Officer Grant, who contacted the victim four days after the incident in August 11 For the Northern District of California United States District Court 10 2004, testified that the victim told him “at the time that he didn’t want to pursue the case” 12 and “said that the incident had been extremely painful for him and he just wanted to let it lie 13 from there.” Answer, Ex. D at 308. Officer Grant further testified that the investigation was 14 reopened in May 2006 when further information from the Oakland Police Department Crime 15 Lab identified Briggs as a potential suspect. Answer, Ex. D at 310. After receiving this 16 information from the crime lab, Officer Grant contacted the victim again, nearly two years 17 after the incident. Officer Grant met the victim in person to obtain a statement and brought 18 with him another officer who spoke Spanish. Id. at 310-11. 19 Briggs contends that during the victim’s interview in 2006, the victim expressed his 20 concern about testifying because he was undocumented, and that one of the officers 21 promised to assist him in seeking permanent residency. The record demonstrates, 22 however, that the officers did not make any such promise or agreement to provide 23 immigration assistance in exchange for the victim’s testimony. Further, the victim had 24 already given his account of the 2004 assault before he raised the issue of his immigration 25 status. As determined by the court of appeal, neither the tape of the interview, nor a 26 transcript of the taped interview, were provided to the trial court or entered into evidence. 27 Answer, Ex. B at 9 n. 8. Defense counsel, however, did not dispute the accuracy of the 28 21 1 prosecutor’s clarification of the statements made during the interview, which the attorneys 2 discussed with the trial court outside the presence of the jury: 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 MS. BELTRAMO: After Miss Thomas mentioned yesterday that something was said on the tape by the police officers about making promises to help him fill out paperwork, I went back to my office and listened to the tape. And, in fact, after he has told the police officers what happened to him, they go into how it has affected his life and if he wants to kill himself and different emotional issues. And part of it the victims says—I wrote it down: “You know I don’t have any papers here so I’m scared it will affect me”. And the police officers say: “You don’t need to worry about that”. And one of the police officer [sic] said: “I have assisted people in the past with”—I wrote it down exactly—“I have signed papers for immigration assistance and they can actually qualify for residentship” [sic]. Then Officer Grant says: “Oh, yeah, definitely being the victim of crime.” Then they go into a different subject. They don’t even talk about with him about signing papers and they don’t— 12 13 14 THE COURT: That is not the context you explained to me, Miss Thomas. That is not how you said it happened. That is not what you said. You hear her response regarding the tape? That is not what you said. 15 16 17 MISS THOMAS: Your Honor, I just got the tape and listened to it last night. I have had a transcript that was provided to me by my former counsel which was transcribed by them. It indicates basically that he was told he could get immigration assistance, but it is in 2006. 18 Answer, Ex. D at 128-29. When the trial court determined that the police officers 19 mentioned the topic of immigration assistance only after the victim had already talked about 20 the 2004 incident, the trial judge excluded the line of questioning about the officers’ 21 representations regarding immigration assistance as irrelevant. Id. at 129. 22 Briggs argues persuasively that evidence of immigration benefits given to alien 23 witnesses is highly relevant impeachment material, citing United States v. Blanco, 392 F.3d 24 382 (9th Cir. 2004). Reply at p-2. There, the court of appeals held that the government 25 had not discharged its Brady/Giglio obligations when the Drug Enforcement Administration 26 identified a source as “simply a paid informant” and refused to disclose the fact that a 27 confidential informant had a “significant relationship” with the Immigration and 28 Naturalization Service and was granted a “special parole visa” under which he was allowed 22 1 to stay in the United States. 392 F.3d at 388-90. The informant testified that the 2 defendants were dealing methamphetamine, and the prosecution relied heavily on the 3 informant’s testimony where there was no admissible recording of the informant’s 4 interaction with the defendants and no evidence of drugs, drug paraphernalia, scales, 5 ledgers or large amounts of money was found on the defendants or at their home that 6 would have indicated a methamphetamine sales operation. Id. at 386-87. Noting that “the 7 government’s case depended heavily on the jury’s believing [the informant’s] testimony,” 8 and that the “defense depended heavily on the jury’s believing that [the informant] was a 9 liar,” the court in Blanco held that the evidence of the informant’s special arrangement with INS was “highly relevant impeachment material” and found it “obvious” that the material 11 For the Northern District of California United States District Court 10 “should have been turned over to Blanco under Brady and Giglio.” Id. at 387, 392. 12 Briggs also cites United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993) to 13 argue that the evidence of immigration benefits was highly relevant, Reply at p-4, but that 14 authority is not instructive on the Confrontation Clause claim presented here. There, the 15 court of appeals remanded to determine whether the government had discharged its Brady 16 obligations and to determine the extent of possible impeachment material, but the 17 impeachment material did not concern an offer or receipt of immigration benefits by the 18 witness. Id. at 333. 19 Applying the two-part analysis for violation of the right to cross-examine as set forth 20 in Ortiz, 2012 WL 6052251 at *7, the court first determines that, in light of Blanco, 392 F.3d 21 at 387, the officers’ statements to the victim about the availability of immigration benefits to 22 victims of crime “sufficiently bore upon the witness’ reliability or credibility such that a jury 23 might reasonably have questioned it.” Cross-examination of the victim, a Mexican national, 24 as to whether he was aware that testifying as a crime victim could help him obtain 25 immigration benefits would be relevant to the issue of bias. See Reply on Mot. Disclose 26 and for Evid. Hrg. at 3. If the victim subjectively believed that a police detective would 27 prepare a certification in support of his U-Visa application, then evidence of the victim’s 28 belief and understanding of U-Visa program benefits would have provided relevant 23 1 impeachment evidence because defense counsel could have argued that the victim would 2 have been motivated to testify by the prospect of immigration benefits, such as eligibility for 3 permanent residence. In other words, even if no benefits were actually promised or 4 provided (as has been found), his belief that such benefits might be forthcoming would 5 certainly be relevant to his motivation to testify for the prosecution. 6 Second, the state court’s determination that “the proffered evidence was irrelevant 7 and therefore inadmissible” is unreasonable. The state court determined that the cross- 8 examination of the officers about any offers of immigration assistance was irrelevant to the 9 question of the victim’s bias because the victim had already given not one but two statements about the attack before any so-called offers were made. While this court 11 For the Northern District of California United States District Court 10 agrees that the two prior statements may have diminished the value of cross-examination 12 as to the content of his statements, the issue raised here is also the need to cross-examine 13 the victim on his motivation to testify at trial, given his initial reluctance to do so. The 14 defense could have attempted to attack his credibility by showing that although he was the 15 victim of a brutal attack, he did not initially want to pursue a criminal prosecution of the 16 perpetrator, but changed his mind, not about his statement but about testifying, only after 17 being promised immigration benefits. In determining that the evidence was irrelevant 18 because it invited speculation, the state court did not sufficiently weigh the victim’s 19 subjective beliefs about the availability of immigration benefits as evidence of bias. 20 Accordingly, the state court’s preclusion of the proffered cross-examination of the victim 21 violated Briggs’s right to confront an adverse witness. See Ortiz, 2012 WL 6052251 at *7. 22 23 2. Harmless Error On habeas review, a Confrontation Clause violation is subject to harmless error 24 analysis. Applying the Van Arsdall factors here, the court determines that the victim’s 25 testimony was important in the prosecution’s case and not merely cumulative because no 26 other eyewitnesses testified to corroborate the victim’s account of the assault. Other 27 factors, however, outweigh the importance of the victim’s testimony in the harmless error 28 analysis, such as the admission of evidence corroborating the victim’s account of the crime, 24 1 including the forensic results of the sexual assault examination taken on the night of the 2 incident. Furthermore, other impeachment evidence was available to defense counsel, and 3 the record shows that the victim was subject to extensive cross-examination. Defense 4 counsel pointed out several inconsistencies in the victim’s prior statements, as found by the 5 court of appeal: 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The defense was able to elicit inconsistencies among John Doe’s various accounts of the assault. For example, at trial John Doe testified he consumed six beers while listening to music at the Fandango club and denied having taken any drugs before the assault. However, Paolinetti, the physician’s assistant who conducted the sexual assault exam, testified that John Doe had told her he did not consume any alcohol within 12 hours prior to the assault but had used drugs within 96 hours prior to the attack. John Doe did not recall telling Paolinetti this information, nor did he recall testifying at the preliminary examination hearing that he had only drank two beers. Defense counsel also elicited discrepancies in John Doe’s account regarding who carried the gun. At trial, John Doe testified that the tall, thin man carried the gun as the two assailants approached him. On cross-examination, John Doe admitted that at the preliminary examination hearing he had testified the shorter, heavier man was holding the gun. He then testified the men passed the weapon back and forth to each other. He also stated he did not remember telling the officers during the 2006 taped interview that the person who sexually assaulted him did not hold the gun. The jury heard other inconsistencies in John Doe’s description of the assault. For example, at trial, John Doe stated that after he was assaulted he ran down Foothill Boulevard in search of help, but lost consciousness. In contrast, Tran testified that at the hospital on August 22, 2004, John Doe stated that after he was assaulted he ran back to the Fandango club for help and someone at the club called 911. Another discrepancy concerned John Doe’s account of who drove the truck. At trial, John Doe testified he was forced to drive the truck and was unable to recall whether, in the 2006 interview, he had told the officers he had driven the truck. Grant, however, testified that in the 2006 interview John Doe did not state he had driven the truck. John Doe acknowledged during cross-examination that he had told the officers during the 2006 interview that the two men had him sit in the middle of the truck on the floorboards while they drove at a high rate of speed. John Doe’s ability to recall the events was also explored. For example, John Doe did not recall speaking with Grant on September 2, 2004, approximately one week after the incident, and he did not remember telling police that he did not want to pursue criminal prosecution of his assailants. John Doe also was unable to recall some of the statements he made to Tran, the officer who interviewed him at the hospital on August 22, 2004. John Doe also could not 25 1 2 3 4 remember testifying at the preliminary hearing that the assailants shoved him in the truck first before they entered the vehicle, which contrasts with his trial testimony that the men entered the truck and then pulled him inside. Similarly, on cross-examination, John Doe was asked about his testimony at the preliminary examination hearing regarding his ability to see underneath the blindfold because there was a little tear in it. At trial, John Doe insisted he never said there was a tear in the blindfold. 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 Defense counsel was able to attack John Doe’s identification of Briggs. At trial John Doe stated he was 70 to 80 percent certain Briggs was the assailant who sexually assaulted him. During cross-examination, John Doe admitted that when he was interviewed by police at the hospital on August 22, 2004, he told the officer he would not be able to identify his assailants. The jury also learned that at the preliminary examination hearing John Doe testified he did not recognize Briggs as one of the assailants. On cross-examination, John Doe acknowledged that approximately one week before trial he told the prosecutor he did not identify Briggs as his assailant at the preliminary examination hearing because he was afraid that Briggs would get up and take the deputy sheriff’s gun and shoot and kill him in the courtroom. On direct and re-direct examination, John Doe explained that another reason he did not identify Briggs at the preliminary examination hearing was because he was hoping Briggs would be released so he could kill Briggs himself. This record demonstrates that Briggs had ample ability to impeach John Doe’s credibility, and we are not persuaded that in light of the evidence presented, the jury would have received a significantly different impression of John Doe had the defense been permitted to question him about his immigration status, or any potential benefit he might receive regarding that status. (See Van Arsdall, supra, 475 U.S. at p. 680; [People v.Frye, 18 Cal.4th 894, 946-47 (1998)].) Accordingly, there was no constitutional error. 18 Answer, Ex. B at 18-19 (summarizing defense counsel’s ability to impeach the victim’s 19 credibility). Further, the overall strength of the prosecution’s case, including DNA evidence 20 found on the victim and the testimony of investigating officers and the physician’s assistant 21 who examined the victim, minimizes the impact of excluding questions about the victim’s 22 immigration status and the officer’s statement that “I have assisted people in the past . . . I 23 have signed papers for immigration assistance.” 24 Even “assuming that the damaging potential of the cross-examination were fully 25 realized,” Van Arsdall, 475 U.S. at 684, Briggs’s contention that the victim was biased by 26 the prospect of receiving immigration benefits, such as a U-Visa, would not have 27 substantially influenced the jury in light of all the evidence presented at trial. Briggs 28 26 1 contends that the outcome of trial could have been different because the issue of consent 2 in the sexual assault prosecution turned on the victim’s credibility and the defense had no 3 theory at trial of why the victim would have had a motive to lie. See Reply ISO Mot. 4 Disclose and for Evid. Hrg. at 8. The evidence at trial, however, showed that the victim had 5 already given two statements to the investigating officers before the officers mentioned the 6 possibility of seeking immigration benefits as a crime victim. The record indicates that the 7 discussion between the officers and the victim about the availability of immigration benefits 8 was brief, and was raised only after the victim told the officers that he had been raped and 9 expressed his concern about being an undocumented alien, suggesting that he feared deportation if he came forward to testify. Evidence that the officers mentioned that 11 For the Northern District of California United States District Court 10 immigration benefits were available to crime victims would have limited impeachment value 12 where the victim had already given two statements to investigators and was otherwise 13 subject to cross-examination at trial. Furthermore, the evidence supporting Briggs’s 14 conviction included not only the victim’s testimony but also testimony from investigating 15 officers, a medical professional who examined the victim, and a DNA expert who analyzed 16 forensic evidence obtained during the victim’s sexual assault examination taken on the 17 night of the incident. 18 In light of all the evidence presented at trial, the court finds that the trial court’s 19 preclusion of cross-examination on the victim’s immigration status, and the officers’ 20 statements about immigration benefits, did not have a “substantial and injurious effect or 21 influence in determining the jury's verdict.” Brecht, 507 U.S. at 637 (citation and quotation 22 marks omitted). Briggs therefore fails to demonstrate that he is entitled to habeas relief on 23 this Confrontation Clause claim. 24 IV. Right to Cross-Examine Expert Witness 25 Briggs seeks habeas relief on the ground that the state court’s limitations on his 26 ability to cross-examine the prosecution’s expert witness, criminalist Ines Iglesias-Lee, 27 violated his Fifth Amendment due process rights and his Sixth Amendment right of 28 confrontation. 27 1 A. 2 At trial, the prosecution’s DNA expert, Iglesias-Lee, was deemed an expert in the Expert Testimony 3 field of forensic biology and DNA analysis. Upon comparing the DNA profile from Briggs’s 4 saliva swab to the DNA profile from the unknown sperm sample taken from the victim’s 5 rectal swabs, Iglesias-Lee determined that the DNA profiles matched and that Briggs could 6 not be excluded as being the source of that DNA. Answer, Ex. D at 282-83. Iglesias-Lee 7 testified that in analyzing the unknown sperm sample taken from the victim’s rectal swabs, 8 she performed a statistical analysis by using a computer program named Pop Stats, which 9 she defined as a “software program that is part of the CODIS program that is made the F.B.I. and this program calculates the statistical frequency of the profile that we input into 11 For the Northern District of California United States District Court 10 the program.” Id. at 287. Based on the calculation of the statistical frequency of the sperm 12 profile, she determined that the profile occurs in less than 1 out of 1.5 trillion members of 13 the Caucasian, African American, Southwest Hispanic and Southeast Hispanic popluations. 14 Id. Iglesias-Lee concluded that “it would be highly unlikely that this profile would be found 15 in the population at large of unrelated individuals.” Id. at 288. 16 17 18 Defense counsel cross-examined Iglesias-Lee on the accuracy of the statistics used by the FBI as follows: Q. [Defense Counsel] Okay. So you have not independently verified the accuracy of those statistics. 19 20 A. No. I – the numbers that were generated by the computer and the number – the most common number generated in this case is the one that was included in the report. 21 22 Q. Okay. And the F.B.I. study based on the population comes from a survey of 200 people, right? 23 A. Approximately 200 people from each of the populations. 24 Q. Each of the populations. Each of what populations? 25 A. In our lab we use the African American, Caucasian, Southeast Hispanic, and Southwest Hispanic populations. 26 ... 27 28 Q. And this population of 200 persons that the F.B.I. used, they were self-selected or self-identified when they came into the group? 28 1 2 3 A. Yes, most of the—as far as I know, the people who donated these samples are usually people who donate to the Red Cross, for example, and they self-declared their ethnicity. Q. Is there anything to factor in there some of the discouragements that there are to self-disclose a particular race? 4 A. I don’t understand your question. 5 6 Q. Well, how do you define, for example, African American? Is it a person who is 100 percent African American? 1 percent? Less than 1 percent? 7 MS. BELTRAMO [Prosecutor]: Objection, relevance. 8 THE COURT: Sustained. She doesn’t define anything. 9 MS. THOMAS: Q. How did the F.B.I. define it in the computer program that you used to determine this 1 in 1.5 trillion? 11 For the Northern District of California United States District Court 10 MS. BELTRAMO: Objection, calls for speculation. 12 THE COURT: If you know only. If you don’t know, you don’t know. 13 THE WITNESS: As far as I know, the samples—the ethnicity was self-declared. I do want to make a point that the statistical analysis is not performed on the sample of the defendant in this case, Marquez Briggs. We perform the calculation on the profile of the evidence and the evidence doesn’t have a race, so to speak. 14 15 16 17 MS. THOMAS: Q. Right. But your computation—the occurrence of that particular D.N.A. profile is based on race, correct? 18 A. That’s correct. And we use those—the most common out of the four of the populations. 19 Q. So is there any room for error in your calculation? 20 A. Not that I can see, no. 21 23 Q. Were there any controls in the F.B.I. group when they made these calculations as to the geology [sic] as to where the people were selected from when they came up with these statistical demographic numbers? 24 MS. BELTRAMO: Objection, calls for speculation, lack of foundation. 25 THE COURT: Sustained. 26 MS. THOMAS: Q. You are an expert in D.N.A., right, forensic D.N.A.? 22 27 A. Forensic D.N.A., yes. 28 29 1 Q. One of the tools you use is the F.B.I. program. 2 A. That’s correct. 3 Q. And that is accepted in the community. 4 A. That is correct. 5 Q. In the scientific community. 6 A. Yes. 7 Q. Not the lay community. And it is something that you know about and use and rely on in your work, right? 8 A. Correct. 9 Q. So can you tell me whether these 200 people came from a little enclave in Minnesota? 11 For the Northern District of California United States District Court 10 MS. BELTRAMO: Objections, relevance. 12 THE COURT: Sustained. 13 THE WITNESS: Well— 14 THE COURT: Sustained. You don’t answer that question. It is sustained. 15 16 Answer, Ex. D at 290-92. 17 B. 18 Briggs contends that the trial court improperly restricted his cross-examination of the 19 DNA expert in violation of his right of confrontation and due process rights. He argues that 20 Iglesias-Lee conceded that she was not an expert in statistics, and admitted that for her 21 statistical analysis, she relied on an FBI program using a database in which the subjects 22 self-declared their ethnicity. Pet. ¶ 29. Briggs contends that the trial court erred by 23 excluding questions about what controls the FBI had used in its sampling to account for 24 geographical areas from which the subjects were selected. Briggs fails to make any 25 argument or demonstration how these limits on the expert’s cross-examination had a 26 “substantial and injurious effect” in determining the jury’s verdict to establish a basis for 27 habeas relief under Van Arsdall, 475 U.S. at 679. Discussion 28 30 1 Respondent opposes this Confrontation Clause challenge on the ground that Briggs 2 failed to present it in state court and the claim is procedurally defaulted. Answer at 28. 3 Briggs does not address the issue of procedural default in his reply brief. The record 4 demonstrates that Briggs raised this Confrontation Clause challenge for the first time on 5 direct appeal. The court of appeal held that the claim was forfeited because Briggs failed to 6 present the argument at trial or in his motion for new trial. Answer, Ex. B at 20. 7 Nevertheless, the court of appeal addressed Briggs’s arguments on direct review. Id. 8 Because the state court considered Briggs’s Confrontation Clause claim on the merits, 9 procedural default does not bar habeas review and the court may reach the merits of the claim. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("If the last state court to be 11 For the Northern District of California United States District Court 10 presented with a particular federal claim reaches the merits, it removes any bar to federal 12 court review that might otherwise have been available."). 13 Respondent argues in the alternative that even if the Confrontation Clause claim 14 were not in procedural default, the claim for habeas relief should be denied because the 15 state court properly rejected Briggs’s claim. The court of appeal rejected Briggs’s argument 16 that the trial court erred by sustaining the objections to questions about the accuracy of the 17 statistics used in the FBI software program: 18 19 20 21 22 23 24 25 26 27 Briggs contends the trial court erroneously limited his cross-examination of Iglesias-Lee regarding the statistical basis for her testimony that Briggs’s DNA profile “occurs in less than 1 out of 1.5 trillion” people. He suggests that Iglesias-Lee was “just reading a number calculated by a computer program and had no understanding of the statistics involved.” According to Briggs, the DNA profile frequency evidence was a critical component of the prosecution’s case, and if he could have shown that Iglesias-Lee did not understand the statistics involved, the 1 in 1.5 trillion figure would have been meaningless and the jury would not have considered it. For this reason, Briggs argues the trial court’s restrictions on IglesiasLee’s cross-examination improperly hindered his ability to test the validity of that evidence, thereby violating his right of confrontation and his right to present a defense. The State maintains Briggs’s constitutional claims are forfeited, and that he was allowed broad examination of Iglesias-Lee regarding the statistical basis for her testimony. We agree with the State that Briggs’s constitutional claims regarding this issue are forfeited because Briggs failed to present 28 31 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 them either during trial or in his motion for new trial. (See People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited confrontation clause claim by failing to raise it at trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 628-629 [generally a constitutional claim must be raised in the trial court to preserve the issue for appeal].) Even assuming the claims are not forfeited, we conclude the trial court’s ruling was not an abuse of discretion and violated neither Briggs’s right of confrontation nor his right to present a defense. Briggs’s claim that Iglesias-Lee appeared to have little or no understanding of the statistics involved in calculating the DNA profile frequency has no support in the record. Iglesias-Lee testified that, although she is not an expert in statistics, she does have a “working knowledge of the basic concepts,” and she used Pop Stats--an FBI software program generally accepted in the scientific community--to determine the DNA profile frequency in this case. Significantly, Briggs does not demonstrate that he was prohibited from probing into the limits of Iglesias-Lee’s understanding of statistical concepts and how or whether those limitations could affect her ability to testify regarding the DNA frequency profile calculation she obtained. The only restrictions placed on defense counsel’s cross-examination of Iglesias-Lee regarding the DNA profile frequency statistic concerned her knowledge of the population database controls used by the FBI in creation of the software program. Iglesias-Lee testified that the FBI population database comes from approximately 200 people from each of the African-American, Caucasian, Southeast Hispanic, and Southwest Hispanic populations. She explained they do not use Asian populations in her laboratory, but clarified that if necessary her laboratory would be able to use the Asian database. She also stated that to her knowledge, the people who donated the samples were usually people who donate to the Red Cross, for example, and they self-identified their race. She did not independently verify the accuracy of the statistics contained in the FBI data. When defense counsel asked if there “[w]ere there any controls in the [FBI] group when they made these calculations as to the geology [sic] as to where the people were selected from when they came up with these statistical demographic numbers,” the trial court sustained the prosecutor’s speculation and lack of foundation objections. Defense counsel also asked Iglesias-Lee if the population used for the FBI survey “came from a little enclave in Minnesota.” The prosecutor objected based on relevance, and the trial court again sustained the objection. Briggs emphasizes the importance of having wide latitude to test the credibility of witnesses and the validity of DNA evidence. Other than the two inquiries regarding the population used in the FBI database, Briggs does not identify what other lines of questioning were foreclosed which would have been relevant to Iglesias-Lee’s credibility or her expertise. Further, the record shows Briggs was afforded the opportunity to question Iglesias-Lee regarding her analysis of the DNA evidence, how she derived the DNA profile 28 32 1 frequency statistical figure, and her understanding of the FBI software program she employed to obtain that calculation. 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 The record also demonstrates the jury heard evidence bearing on Iglesias-Lee’s credibility and the weight to be given to the statistical evidence. First, on direct examination she admitted that she made a mistake when writing a date on one of the envelopes containing oral swabs. She acknowledged during cross-examination that she was not a “computer program software person.” On direct examination, Iglesias-Lee testified that “[e]ach person’s [DNA] is unique with the exception of identical twins which share the same [DNA].” On cross-examination she admitted she did not know whether Briggs was a twin. The trial court’s rulings were not an abuse of discretion. The information sought had at best collateral impeachment value, and Briggs has not demonstrated how the prohibited cross-examination would have been important or necessary to assess the weight of the DNA profile frequency evidence. Having reviewed the record, we conclude the excluded cross-examination into collateral issues regarding the population data used to create the FBI software program would not have given the jury a “significantly different impression” of Iglesias-Lee’s credibility and therefore the trial court’s ruling did not violate Briggs’s confrontation right. (See Van Arsdall, supra, 475 U.S. at p. 680; Frye, supra, 18 Cal.4th at p. 947.) In his argument that the trial court’s rulings violated his right to confront witnesses, Briggs maintains this error also deprived him of his constitutional right to present a defense. This right requires that a defendant be able “‘to present all relevant evidence of significant probative value to his defense.’” (People v. Babbitt (1988) 45 Cal.3d 660, 684.) Further, “[a]s a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge), first and last instances of bracketed material added.) 19 20 21 22 23 24 25 26 Even if this issue had been properly preserved, we find no constitutional error. The record demonstrates “the trial court’s ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Briggs was permitted to cross-examine Iglesias-Lee regarding the population used to establish the FBI database. The only lines of questioning that were precluded concerned what controls existed in the FBI population database, and whether the subjects came from a limited geographic area. Briggs has not identified any other lines of questioning he was foreclosed from pursuing which hampered his defense, and he was certainly not foreclosed from presenting affirmative evidence from an expert of his own if he felt that the prosecution’s evidence was susceptible of meaningful impeachment in this respect. [Footnote omitted.] 27 28 We conclude the trial court’s rulings limiting Iglesias-Lee’s cross-examination merely rejected certain evidence on a minor and 33 1 2 collateral issue. As such, they do not amount to a constitutional violation because “excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (Fudge, supra, 7 Cal.4th at p. 1103.) 3 4 Answer, Ex. B at 20-23. upon the DNA expert’s credibility “such that no fairminded jurist could disagree that the 7 cross-examination could have influenced the jury's assessment of her.” Ortiz, 2012 WL 8 6052251 at *7. The court of appeal considered that this line of cross-examination would 9 have addressed only a minor or subsidiary point, and concluded that this cross-examination 10 would have had at best collateral impeachment value to justify the trial court's curtailment of 11 For the Northern District of California Briggs fails to demonstrate that his proffered cross-examination sufficiently bore 6 United States District Court 5 cross-examination. The state court’s decision to curtail the proffered cross-examination 12 was not contrary to, or an unreasonable application of, clearly established federal law and 13 did not violate Briggs’s right of confrontation. 14 Even if the trial court’s limitation on the DNA expert’s cross-examination amounted 15 to constitutional error, any such error was harmless in light of the evidence presented at 16 trial. Applying the Van Arsdall factors, the court determines that Iglesias-Lee’s testimony 17 was important to address the weight of the forensic evidence and was not cumulative. The 18 other Van Arsdall factors do not, however, show that the limitation on her cross- 19 examination had a prejudicial effect. The record shows that there was significant DNA 20 evidence showing that Briggs’s DNA profile matched the DNA profile of the semen sample 21 taken from the victim’s rectal swab, to support and corroborate the expert’s findings. As the 22 court of appeal determined, defense counsel was permitted extensive cross-examination to 23 challenge Iglesias-Lee’s credibility, including questions about her analysis of the DNA 24 evidence, how she derived the DNA profile frequency statistical calculation, and her 25 understanding of the FBI software program that she used to make that calculation. Finally, 26 the prosecution presented a strong case, which included testimony from the victim, 27 investigating officers and the medical professional who examined the victim, as well as 28 forensic evidence. Viewed in the context of the record as a whole, any error in excluding 34 1 questions about the population used in the FBI database was harmless and did not have a 2 substantial and injurious effect on the jury verdict. Van Arsdall, 475 U.S. at 679. 3 The state court’s rejection of Briggs’s Confrontation Clause challenge to the 4 limitations on his cross-examination of the DNA expert was neither contrary to, nor an 5 unreasonable application of, clearly established federal law. This claim for habeas relief is 6 therefore denied. 7 CONCLUSION 8 For the reasons set forth above, Briggs’s petition for a writ of habeas corpus is 9 DENIED. This order fully adjudicates the petition and terminates all pending motions. The clerk shall close the file. 11 For the Northern District of California United States District Court 10 CERTIFICATE OF APPEALABILITY 12 To obtain a certificate of appealability, Briggs must make “a substantial showing of 13 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has 14 rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is 15 straightforward. “The petitioner must demonstrate that reasonable jurists would find the 16 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 17 McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a 18 COA to indicate which issues satisfy the COA standard. Here, the court finds that the 19 following issue presented by Briggs in his petition meets that standard: whether the state 20 court’s refusal to allow him to cross-examine the victim regarding the officers’ statements 21 about immigration benefits violated his Sixth Amendment right of confrontation and was not 22 harmless error. Accordingly, the court GRANTS the COA as to that issue. See generally 23 Miller-El, 537 U.S. at 322. 24 \\ 25 \\ 26 27 28 35 1 The clerk shall forward the file, including a copy of this order, to the Court of 2 Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 3 1997). 4 5 IT IS SO ORDERED. Dated: January 22, 2013 6 ______________________________ PHYLLIS J. HAMILTON United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36