Inthavong v. Lamarque ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSA INTHAVONG,  No. 03-57075
Petitioner-Appellant,
D.C. No.
v.
 CV-01-01669-
ANTHONY LAMARQUE, Warden; BILL JTM/LSP
LOCKYER, Attorney General,
OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
January 14, 2005—Pasadena, California
Filed August 23, 2005
Before: Diarmuid F. O’Scannlain and Richard R. Clifton,
Circuit Judges, and Charles R. Weiner,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Charles R. Weiner, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
11257
11260 INTHAVONG v. LAMARQUE
COUNSEL
Janice M. Deaton, San Diego, California, argued the cause for
the petitioner-appellant and was on the briefs.
Elizabeth A. Hartwig, Office of the Attorney General of Cali-
fornia, San Diego, California, argued the cause for the
respondents-appellees; Bill Lockyer, Attorney General, Rob-
ert R. Anderson, Gary W. Schons, Gary W. Brozio, and Eliza-
INTHAVONG v. LAMARQUE 11261
beth A. Hartwig, Office of the Attorney General of California,
San Diego, California, were on the brief for the respondents.
OPINION
O’SCANNLAIN, Circuit Judge:
In this appeal from the denial of a petition for writ of
habeas corpus, we must decide whether the admission of an
allegedly coerced confession in the state court trial was preju-
dicial error.
I
On the evening of September 12, 1998, a white Honda
Civic slowly passed some partygoers standing outside a San
Diego area home. One partygoer kicked the car. Several hours
later, the same Honda returned in the company of several
other cars. A group of twenty to thirty Asian males exited
these cars and started to beat an individual named Dobson,
apparently at random. One of the group, named “Clumsy”,
fired a gun at Dobson several times.
Dobson was pronounced dead on arrival at a local hospital.
He had two gunshot wounds in the chest, a skull fracture,
puncture wounds (probably from a screwdriver), and had been
beaten (probably with a metal pipe or a baseball bat).
Later that night, at 1:15 AM, police spotted a white Honda
Civic, whose plates matched witness descriptions, parked
with another car that also matched witness descriptions. The
white Honda Civic eluded pursuit.
The police then went to the address at which the white
Honda Civic was registered and found the car. While the
police were impounding it, Osa Inthavong came out of the
11262 INTHAVONG v. LAMARQUE
house to talk with them. Inthavong stated that he drove the car
last and that he had returned home with it at about 1:30 AM.
Three days later, Inthavong spoke with the police. In an
allegedly coerced confession, he admitted that he had been
driving the white Honda Civic when it was kicked and that he
had brought back a group of fellow gang members to retaliate.
He recounted swinging at Dobson and missing, then dropping
Dobson with a kick to his neck. He stated that many in his
group then rushed in on Dobson and started to beat him. He
identified Clumsy as the shooter but disavowed having any
intent to kill Dobson or knowledge that Clumsy would shoot
him.
A few weeks later, on November 5, the police arrested
Inthavong for Dobson’s murder. While left alone in the patrol
car with a friend who had also been arrested for the murder,
he was secretly recorded as saying, “I keep asking homey
why he shoot. He was almost dead when we were . . . done
with him.”
Later that day, Inthavong spoke to the police again, this
time while in custody. He explained that some white males
had kicked his white Honda Civic while he was driving a
friend home. He had then gone to Clumsy’s house and got
several carloads of people to return with him to teach a lesson.
He stated that a fight had broken out and shots had been fired,
but that he had not participated. Inthavong was charged with
aiding and abetting a second-degree murder.
At Inthavong’s trial, a gang member named Phonelama
Phomthavong (“Phon”) testified against him. Phon had also
been charged as an aider and abettor of Dobson’s murder but
in return for his testimony was allowed to plead guilty to a
lesser crime. Phon testified that he was a member of
Inthavong’s gang and that he was with the group that
Inthavong had gathered to retaliate against the people who
had kicked Inthavong’s car. Phon further testified that
INTHAVONG v. LAMARQUE 11263
Inthavong had attacked Dobson and others joined in. Phon
testified that Clumsy had shot Dobson with a gun taken from
Phon’s car, that no one knew Clumsy intended to use a gun,
and that no one had intended for anyone to die. Phon admitted
that he had earlier given a different version of events to the
police and the District Attorney.
The prosecution also called a gang expert, who testified
that Inthavong, Phon, Clumsy, and the others were members
of a street gang whose ethic demanded avenging insults like
the kicking of the white Honda Civic. Inthavong’s September
16 confession, his November 5 confession, and his secretly-
recorded statement to his friend were all admitted into evi-
dence.
In Inthavong’s defense, a friend, Tiffani M., testified that
Inthavong was twenty feet from the fight when shots broke
out. Inthavong also testified. He said that he had driven past
the party and that someone there might have attacked his car.
When he told his friends about it, they suggested returning to
find out what happened to his car and he agreed. When they
arrived, a friend ran at Dobson and attacked him. Inthavong
admitted that he himself then kicked Dobson, but denied
knowing that Phon had a gun in his car, denied intending to
kill Dobson, and denied knowing who did the shooting. The
jury found Inthavong guilty.
Inthavong appealed his conviction. He argued that his Sep-
tember 16 confession was coerced and that his November 5
confession was tainted by the coerced September 16 confes-
sion. The California Court of Appeal held that Inthavong
waived any challenge to the November 5 confession, that his
September 16 confession was voluntary under a totality of the
circumstances test, and that, in any case, any error in admit-
ting the September 16 confession was harmless given the
11264 INTHAVONG v. LAMARQUE
weight of evidence and Inthavong’s almost identical testi-
mony at trial.1
Inthavong again challenged the admission of his September
16 and November 5 confessions in this petition for a federal
writ of habeas corpus. The district court ultimately denied the
petition and denied Inthavong’s request for a certificate of
appealability under 28 U.S.C. § 2253(c). After timely appeal,
a motions panel of this court granted Inthavong a certificate
of appealability on his challenge to the admission of the Sep-
tember 16 confession.
II
We are unable to rule on the substance of Inthavong’s
claim that the admission of his November 5 confession was
prejudicial error. Inthavong has neither requested nor received
a certificate of appealability on this issue at any time. In any
case, the California Court of Appeal has held that Inthavong
failed to challenge the admission of the November 5 confes-
sion at trial and that his claims with respect to it were there-
fore procedurally barred under California law. Federal habeas
claims must be dismissed where state courts have decided the
claim on state procedural grounds. See Franklin v. Johnson,
290 F.3d 1223, 1230-31 (9th Cir. 2002).
III
Whatever the merits of Inthavong’s claim that his Septem-
ber 16 confession was coerced, we would be unable to pro-
vide relief unless the admission of that confession into
evidence harmed Inthavong. See Arizona v. Fulminante, 499
1
Inthavong then filed a petition for writ of habeas corpus with the Cali-
fornia Supreme Court. Because the California Supreme Court summarily
denied Inthavong’s habeas petition, the California Court of Appeal’s deci-
sion is the relevant state court determination. See Van Lynn v. Farmon,
347 F.3d 735, 738 (9th Cir. 2003).
INTHAVONG v. LAMARQUE 11265
U.S. 279, 306-12 (1991) (applying to the admission of
coerced confessions the rule of Chapman v. California, 386
U.S. 18, 24 (1967), that constitutional errors that are harmless
beyond a reasonable doubt do not justify reversing a convic-
tion).
A
[1] The California Court of Appeal held that admitting the
confession did not harm Inthavong. Since Mitchell v. Esparza,
540 U.S. 12 (2003), it has been clear that under the Antiterro-
rism and Effective Death Penalty Act (“AEDPA”), we must
defer to such holding unless it was in “conflict with the rea-
soning or the holdings of [Supreme Court] precedent” or if it
“applied harmless-error review in an ‘objectively unreason-
able’ manner.” Id. at 17, 18; see also Medina v. Hornung, 386
F.3d 872, 878-79 (9th Cir. 2004).
[2] If we determine under AEDPA that the state court’s
harmless error holding is contrary to Supreme Court prece-
dent or objectively unreasonable, then no deference is owed.
We revert to the independent harmless error analysis that we
would apply had there been no state court holding. Cf.
Caliendo v. Warden of California Men’s Colony, 365 F.3d
691, 695 (9th Cir. 2004) (“We agree that the state court’s
analysis was framed erroneously and grant the habeas petition
based on our independent review of the record.”); Fernandez
v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002) (“Because the
California state courts applied an incorrect legal standard,
contrary to federal law as pronounced in Batson, we review
petitioner’s Batson claims de novo.”). Such independent
harmless error analysis is described in Brecht v. Abrahamson,
507 U.S. 619 (1993): errors are harmless if they do not have
a “substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 637 (internal quotation marks and
citation omitted). Admittedly the Second Circuit has done
away with the Brecht standard in light of AEDPA and Esparza,2
2
See Zappulla v. New York, 391 F.3d 462, 467, 474-75 (2d Cir. 2004)
(holding that Esparza has supplanted Brecht, at least where a state court
11266 INTHAVONG v. LAMARQUE
and the Eighth Circuit has at least questioned Brecht’s contin-
ued vitality.3 We, however, have squarely held that the Brecht
standard survived AEDPA. See Bains v. Cambra, 204 F.3d
964, 976-77 (9th Cir. 2000) (recognizing and joining a con-
sensus among the circuits that “federal district courts always
should apply the Brecht standard when conducting their own
independent harmless error review, regardless of what, if any,
type of harmless error review was conducted by the state
courts”). We appear to have reached the same conclusion
even post-Esparza. See Picazo v. Alameida, 366 F.3d 971,
971 (9th Cir. 2004) (order) (rejecting a petition for rehearing
that argued that the Brecht standard was inapplicable post-
Esparza because “[g]iven that Esparza did not even mention
Brecht, or its progeny, we do not believe that the Court
intended to overrule those earlier decisions”) (internal citation
omitted). To grant relief where a state court has determined
that a constitutional error was harmless, we must both deter-
mine (1) that the state court’s decision was “contrary to” or
an “unreasonable application” of Supreme Court harmless
error precedent, and (2) that the petitioner suffered prejudice
under Brecht from the constitutional error.
[3] In following this two-part harmless error test, we are
joined by the Tenth, the Seventh, and the Fourth Circuits. The
Tenth Circuit has instructed that “if the district court con-
cludes the [state] court’s application of Chapman was objec-
tively unreasonable, the court should engage in an
independent harmless error analysis applying the standard
articulated in Brecht.” Saiz v. Burnett, 296 F.3d 1008, 1012-
13 (10th Cir. 2002) (internal citation omitted); see also Cargle
has made a harmless error ruling); Gutierrez v. McGinnis, 389 F.3d 300,
306-07 (2d Cir. 2004) (same).
3
See Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir. 2000) (“We are
not convinced that the AEDPA did not abrogate the requirement that fed-
eral habeas courts conduct a harmless error analysis under Brecht in situa-
tions such as the one before us, where the state court already has
conducted a Chapman harmless error analysis . . . .”).
INTHAVONG v. LAMARQUE 11267
v. Mullin, 317 F.3d 1196, 1220, 1224 (10th Cir. 2003) (“If the
state courts did not address a harmless-error issue (or did so
under the wrong standard), we apply the standard generally
adopted for habeas purposes in Brecht v. Abrahamson.”
(internal citation omitted) (emphasis added)).
In Aleman v. Sternes, the Seventh Circuit has also rejected
the argument that AEDPA “jettisons Brecht and replaces it
with the question whether the state judiciary unreasonably
applied the Chapman standard.” 320 F.3d 687, 690 (7th Cir.
2003). Instead, the court concluded that even if a state court’s
harmless error ruling were objectively unreasonable, it would
still then conduct a Brecht review. Id. The court reasoned:
“Nothing in the AEDPA suggests that it is appropriate to issue
writs of habeas corpus even though any error of federal law
that may have occurred did not affect the outcome.” Id. We
agree.
Sitting en banc, the Fourth Circuit has recently adopted the
same two-part approach to state court harmless error rulings.
See Allen v. Lee, 366 F.3d 319 (4th Cir. 2004) (per curiam).
The Fourth Circuit had to evaluate the North Carolina
Supreme Court’s conclusion that an erroneous jury instruction
was harmless beyond a reasonable doubt. In a terse per
curiam decision, the Fourth Circuit explained first that “the
North Carolina Supreme Court’s conclusion . . . resulted in a
decision that was contrary to or involved an unreasonable
application of clearly established federal law as determined by
the Supreme Court” and second that “the error was not harm-
less under Brecht.” Id. at 322 (internal citation omitted).4
4
In addition to the per curiam opinion, seven of the twelve judges joined
opinions that clearly adopted this mode of proceeding. Judge Gregory,
writing for a plurality of five judges, see id. at 321, first concluded that
the habeas writ could not issue unless the state court’s harmless error rul-
ing was objectively unreasonable. Id. at 340-41 (Gregory, J., concurring
in the judgment on the harmlessness issue). Having concluded that the
state court’s ruling was objectively unreasonable, he then proceeded to
11268 INTHAVONG v. LAMARQUE
[4] In espousing the approach of these three circuits, we
reject the view—adopted by the Sixth Circuit and at least sug-
gested by the Third—that the AEDPA/Esparza test is wholly
subsumed by the Brecht test. See Bulls v. Jones, 274 F.3d 329,
335 (6th Cir. 2001) (reasoning that “if a habeas petitioner sat-
isfies the Brecht standard, ‘he will surely have demonstrated
that the state court’s finding that the error was harmless
beyond a reasonable doubt . . . resulted from an unreasonable
application of Chapman’ ” (citations omitted)); see also Lam
v. Kelchner, 304 F.3d 256, 270 n.14 (3d Cir. 2002) (opining
that the Brecht standard is “more generous” to the state courts
than the AEDPA standard). We agree that the AEDPA and
the Brecht inquiries will overlap in many cases: the state court
will be objectively unreasonable under AEDPA and the error
harmful under Brecht, or vice versa, for similar or even identi-
cal reasons. We do not agree that such inquiries will overlap
in all cases.
Harmless error determinations are highly fact-specific.
They often involve a review of the entire trial record. Under
Brecht, we will often make numerous independent evaluations
about the weight and sufficiency of the various items of evi-
dence, the inferences to be drawn, and the different theories
of the case. Under AEDPA, we simply concern ourselves with
the reasonableness of the evaluations and conclusions that the
state court explicitly or implicitly made, although requiring
the state court to meet the more stringent ‘beyond a reason-
able doubt’ standard. The cumulative differences between
evaluate independently whether the error was harmless under Brecht. Id.
at 343-44. Judge Traxler took the same approach. See id. at 336 (Traxler,
J., concurring in part and concurring in the judgment, joined by Shedd, J.)
(stating that a “determination that the state court’s adjudication was the
product of an unreasonable application of Chapman only results in our
conducting an independent review of the harmlessness of the [error] . . . .
[W]e are to review the claim not under the Chapman harmless-error stan-
dard, but under the harmless-error standard of review set forth by the
Supreme Court in Brecht.”).
INTHAVONG v. LAMARQUE 11269
these different types of evaluations will sometimes lead to dif-
ferent results. Compare Bulls, 274 F.3d at 335 (holding that
the Brecht standard is always more deferential than the
AEDPA standard) with Bryson v. Ward, 187 F.3d 1193, 1205
n.10 (10th Cir. 1999) (“The Brecht standard in this setting is
more rigorous than the determination under the AEDPA of
whether the Oklahoma Court of Criminal Appeals unreason-
ably applied the otherwise more rigorous standard in Chap-
man.”) (internal citation omitted). We therefore cannot join
the Sixth Circuit, nor likely the Third Circuit, on this point.
B
Since both the Brecht and the AEDPA/Esparza tests must
be satisfied with respect to harmless error before relief can be
granted, we are not obliged to address them in any particular
order. See Aleman v. Sternes, 320 F.3d 687, 691 (7th Cir.
2003) (explaining that “[u]nless its jurisdiction is at stake, a
court may take up issues in whatever sequence seems best”).
We first address the objective reasonableness under AEDPA
of the California court’s harmless error ruling.
Under AEDPA we must defer to the state court’s harmless
error ruling unless it is “contrary to, or involve[s] an unrea-
sonable application of” Supreme Court precedent. 28 U.S.C.
§ 2254(d)(1). The state court’s harmless error holding is “con-
trary” to precedent if it “fails to apply the correct controlling
authority, or if it applies the controlling authority to a case
involving facts materially indistinguishable from those in a
controlling case, but nonetheless reaches a different result.”
Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). It is
an “unreasonable application” of precedent if it is “objectively
unreasonable,” which is more than being merely, or even
clearly, incorrect. See id.; see also Lockyer v. Andrade, 538
U.S. 63, 75 (2003).
[5] Applying this approach here, we are satisfied the Cali-
fornia court’s harmless error ruling was not contrary to
11270 INTHAVONG v. LAMARQUE
Supreme Court precedent. The California court correctly
stated that under Arizona v. Fulminante, 499 U.S. 279, 306-12
(1991), it would have to find that the admission of
Inthavong’s September 16 confession was “harmless beyond
a reasonable doubt.”
[6] The California court’s application of the Fulminante
standard was not objectively unreasonable. Inthavong claims
that his September 16 confession was prejudicial because in
it he confessed to being at the scene of the murder and to
physically attacking the victim. Yet, as the California court
concluded, the remaining evidence was “overwhelming.”
Numerous witnesses identified Inthavong’s white Honda
Civic as the lead car in the gang members’ entrance on the
scene. Inthavong himself told the police who towed his car
that he was the last to drive the white Honda Civic and that
he had it until 1:30 AM on the night of the killing. A witness
friendly to Inthavong, Tiffani M., described accompanying
Inthavong back to the scene along with other gang members.
Phon, a co-conspirator, also testified that Inthavong was at the
scene and participated in the fighting. Although Phon’s credi-
bility could be questioned in isolation, his account corrobo-
rated the other evidence and was corroborated by it. Finally,
an expert in Asian gangs testified to their vengeance ethic that
would have required Inthavong to retaliate once his car was
kicked.
[7] In addition to all this, in Inthavong’s other statements
he confessed to being at the scene of the murder and physi-
cally attacking the victim. In his November 5 confession,
Inthavong admitted that he was at the scene but denied partic-
ipating in the attack on Dobson. In his trial testimony,
Inthavong admitted that he had returned with friends to the
scene and had kicked Dobson. Finally, the police recorded
Inthavong saying, “I keep asking homey why he shoot. He
was almost dead when we were . . . done with him.” These
confessions weigh heavily against Inthavong. As we have
held, “the defendant’s own confession is probably the most
INTHAVONG v. LAMARQUE 11271
probative and damaging evidence that can be admitted against
him. . . . [T]he admissions of a defendant come from the actor
himself, the most knowledgeable and unimpeachable source
of information about his past conduct. Certainly, confessions
have profound impact on the jury . . . .” Taylor v. Maddox,
366 F.3d 992, 1017 (9th Cir. 2004) (alterations in original).
Even without the September 16 confession, it would not be
unfair to say that Inthavong was convicted out of his own
mouth.
[8] Even without the September 16 confession, Inthavong’s
own statements and an abundance of evidence attest to his
participation in Dobson’s murder. The California Court of
Appeal was objectively reasonable to rule that any error in
admitting Inthavong’s September 16 confession was harmless
beyond a reasonable doubt.
IV
[9] Because the California court’s harmless error holding
was objectively reasonable, we cannot grant Inthavong the
relief he seeks. The judgment of the district court is hereby
AFFIRMED.