Richard Johnson, Jr. v. Neil McDowell ( 2018 )

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NOT FOR PUBLICATION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