Frederick Thiecke v. Scott Kernan , 695 F. App'x 209 ( 2017 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    JUN 06 2017
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FREDERICK VINCENT THIECKE,                       No.   10-17594
    Petitioner-Appellant,              D.C. No.
    05:06-cv-0161 JF/HRL
    v.
    SCOTT M. KERNAN, Warden,                         MEMORANDUM*
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Jeremy Fogel, District Judge, Presiding
    Argued and Submitted April 21, 2017
    San Francisco, California
    Before: TASHIMA and PAEZ, Circuit Judges, and AMON,** District Judge.
    Following a jury trial, Frederick Thiecke was found guilty in state court of
    two counts of first-degree murder of his mother Libby Green and his stepfather
    Denny Green and was sentenced to life imprisonment. Thiecke presented a
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Carol Bagley Amon, United States District Judge for
    the Eastern District of New York, sitting by designation.
    diminished capacity defense at trial, arguing that he lacked the requisite mental
    state for first-degree murder. He appealed his convictions to the California Court
    of Appeal, which affirmed unanimously. Thiecke subsequently filed a federal
    petition for a writ of habeas corpus in which he argued that the state trial court
    violated his due process right to present a defense by: (1) limiting the extent to
    which Dr. David Foster, the defense’s expert witness, could relate hearsay
    evidence to the jury while allowing the prosecution greater latitude to elicit hearsay
    on cross-examination; (2) excluding evidence of the victims’ background, lifestyle,
    and prior bad acts; and (3) excluding evidence of Thiecke’s neglect and abuse by
    the victims. Applying the deferential standard of review established by the
    Antiterrorism and Effective Death Penalty Act (“AEDPA”), the district court
    dismissed Thiecke’s habeas petition. Thiecke now appeals that decision. We
    review a district court’s denial of a petition for a writ of habeas corpus de novo,
    Visciotti v. Martel, 
    839 F.3d 845
    , 856 (9th Cir. 2016), and we affirm.
    AEDPA “sharply limits the circumstances in which a federal court may issue
    a writ of habeas corpus to a state prisoner whose claim was ‘adjudicated on the
    merits in State court proceedings.’” Johnson v. Williams, 
    133 S.Ct. 1088
    , 1094
    (2013) (quoting 
    28 U.S.C. § 2254
    (d)). Here, Thiecke contends the California
    Court of Appeal did not adjudicate his constitutional claims on the merits. “When
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    a federal claim has been presented to a state court and the state court has denied
    relief, it may be presumed that the state court adjudicated the claim on the merits in
    the absence of any indication or state-law procedural principles to the contrary.”
    Harrington v. Richter, 
    562 U.S. 86
    , 99 (2011). Although this presumption “may
    be overcome when there is reason to think some other explanation for the state
    court’s decision is more likely,” 
    id.
     at 99–100, Thiecke makes no such showing.
    Rather, the California Court of Appeal’s decision makes reference to the Due
    Process Clause. Furthermore, although the California Court of Appeal’s opinion
    discusses California law, the relevant California standards are “at least as
    protective” as the relevant federal standards, so “the federal claim[s] may be
    regarded as having been adjudicated on the merits.” Johnson, 
    133 S.Ct. at 1096
    .
    Therefore, the highly deferential standard of review established by AEDPA
    applies.
    1. Thiecke first argues the trial court violated his due process right to
    present a defense by limiting the extent to which Dr. Foster could testify about the
    hearsay statements on which he based his opinion. The principal hearsay
    statements that Thiecke contends were improperly excluded concern Thiecke’s
    abuse and neglect by the victims. The California Court of Appeal’s rejection of
    this claim was neither contrary to, nor an unreasonable application of, Supreme
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    Court precedent. See 
    28 U.S.C. § 2254
    (d)(1). Under Chambers v. Mississippi, 
    410 U.S. 284
    , 302 (1973), the exclusion of hearsay statements that are critical to the
    defense and that bear “persuasive assurances of trustworthiness” may rise to the
    level of a due process violation. However, in contrast to the excluded statements in
    Chambers, the excluded hearsay testimony here was not directly exculpatory.
    Moreover, the excluded statements had fewer indicia of reliability. Dr. Foster
    testified that Thiecke himself did not acknowledge “much” physical abuse, which
    casts doubt on the reliability of the other declarants’ statements that Thiecke was
    abused. Furthermore, the hearsay statements were made to the defense’s expert
    witness preparing to testify at trial, not “spontaneously to a close acquaintance.”
    
    Id. at 300
    . Accordingly, the California Court of Appeal’s decision was not an
    unreasonable application of Chambers. See United States v. Scheffer, 
    523 U.S. 303
    , 316 (1998) (“Chambers specifically confined its holding to the ‘facts and
    circumstances’ presented in that case . . . .”).
    Thiecke makes a related claim that the trial court violated his due process
    right to present a defense by allowing the prosecution greater latitude to elicit
    hearsay information in its cross-examination of Dr. Foster. The California Court
    of Appeal’s rejection of this claim was neither contrary to, nor an unreasonable
    application of, clearly established federal law as determined by the Supreme Court.
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    See 
    28 U.S.C. § 2254
    (d)(1). The Supreme Court has held that the admission of
    evidence only implicates due process when the “evidence ‘is so extremely unfair
    that its admission violates fundamental conceptions of justice . . . .’” Perry v. New
    Hampshire, 
    565 U.S. 228
    , 237 (2012) (quoting Dowling v. United States, 
    493 U.S. 342
    , 352 (1990)). Because Thiecke has not demonstrated that the hearsay
    evidence the prosecution was permitted to introduce on cross-examination violated
    fundamental conceptions of justice, the California Court of Appeal’s rejection of
    this argument was neither contrary to, nor an unreasonable application of, clearly
    established federal law as determined by the Supreme Court. Furthermore, the
    California Court of Appeal correctly concluded that any error was non-prejudicial
    because, as Thiecke concedes, defense counsel was permitted to elicit similar
    hearsay testimony from Dr. Foster on redirect examination.
    2. Thiecke next argues the trial court violated his constitutional rights by
    prohibiting him from introducing evidence of traces of methamphetamine revealed
    in the victims’ autopsies, pornographic videotapes found in the victims’ apartment,
    and evidence that Thiecke’s mother had solicited the murder of a previous
    husband. The California Court of Appeal rejected this argument, finding that this
    evidence was only marginally related to Thiecke’s theory of defense. The
    Constitution permits the exclusion of evidence whose “probative value is
    5
    outweighed by certain other factors such as unfair prejudice, confusion of the
    issues, or potential to mislead the jury.” Holmes v. South Carolina, 
    547 U.S. 319
    ,
    326 (2006). Thiecke does not meaningfully address the California Court of
    Appeal’s conclusion that the evidence of the Greens’ background and lifestyle was
    properly excluded because it had little relevance. Thiecke only offers conclusory
    assertions that this evidence was probative which are insufficient to demonstrate
    that the California Court of Appeal’s application of Supreme Court precedent was
    objectively unreasonable.
    3. Thiecke also contends that the trial court erred by prohibiting him from
    introducing evidence of his abuse and neglect by the victims. However, the trial
    court never issued a categorical prohibition from introducing evidence of
    Thiecke’s abuse and neglect. The California Court of Appeal’s rejection of
    Thiecke’s claim that the trial court erred in issuing such a ruling was neither
    contrary to, nor an unreasonable application of, clearly established federal law as
    determined by the Supreme Court. See 
    28 U.S.C. § 2254
    (d)(1).
    Even if the exclusion of evidence rose to the level of a constitutional
    violation, any error was harmless under Brecht v. Abrahamson, 
    507 U.S. 619
    , 638
    (1993). First, as the California Court of Appeal noted, much of the testimony that
    Thiecke complains was excluded was, in fact, ultimately presented to the jury,
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    including evidence that Thiecke grew up in an environment of extreme stress, and
    suffered deprivation at the hands of his mother, Dr. Foster was thus able to convey
    his opinion to the jury and at least some hearsay evidence that formed the basis of
    that opinion. Furthermore, the evidence of Thiecke’s guilt was overwhelming.
    The prosecution presented substantial evidence at trial that Thiecke had the
    requisite mental state to commit first-degree murder, including the undisputed
    testimony that Thiecke (1) repeatedly threatened to kill his mother after learning
    his car was repossessed, (2) shot the Greens in their house, (3) burned his clothes,
    (4) buried the gun in a planter box, and (5) fled the jurisdiction. Accordingly, we
    conclude that the exclusion of evidence about which Thiecke complains did not
    have a “substantial and injurious effect or influence in determining the jury’s
    verdict.” Id.
    4. Finally, Thiecke raises a cumulative error argument for the first time in
    his reply brief. The Court will not consider this cumulative error claim because it
    is not exhausted, see Wooten v. Kirkland, 
    540 F.3d 1019
    , 1025–26 (9th Cir. 2008),
    the issue was not certified for appeal, and Thiecke failed to comply with the Ninth
    Circuit’s rules in presenting this uncertified issue, see 9th Cir. R. 22-1(e) &
    Committee Note.
    AFFIRMED.
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