Jeffrey Jones v. Jeff Premo , 513 F. App'x 648 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 20 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JEFFREY JONES, No. 11-35760
Petitioner - Appellant, D.C. No. 1:07-cv-01473-CL
v.
MEMORANDUM *
JEFF PREMO,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted March 7, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
Petitioner Jeffrey Jones appeals the district court’s denial of his petition for a
writ of habeas corpus. We affirm.
We review the denial of a habeas corpus petition brought under 28 U.S.C.
§ 2254 de novo. Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cannot grant a habeas petition unless the state court decision was (1) “contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “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)(1)–(2).
The Oregon Court of Appeals refused to apply the Supreme Court’s decision
in Lilly v. Virginia, 527 U.S. 116 (1999), to Jones’s challenge under the Sixth
Amendment and held that the confession of Jones’s accomplice was admissible at
trial. We have previously held that Lilly was clearly established federal law. See
Forn v. Hornung, 343 F.3d 990, 995 n.4 (9th Cir. 2003).
Under then-controlling Supreme Court precedent,1 out-of-court statements
not within a firmly rooted hearsay exception were inadmissible under the
Confrontation Clause unless they contained particularized guarantees of
trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Lilly held that
accomplice confessions implicating a defendant on trial are presumptively
unreliable. Lilly, 527 U.S. at 131. Also, it is “highly unlikely” that the
presumption can be overcome when the accomplice’s confession spreads blame to
1
Crawford v.Washington, 541 U.S. 36 (2004), overruled Ohio v. Roberts,
448 U.S. 56 (1980), under which Lilly was decided. But the parties do not dispute
that the pre-Crawford cases apply to this claim.
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another and the government is involved in the confession’s production. Id. at 137.
The confession of Jones’s accomplice implicated Jones in the murder and was
given while the accomplice was in police custody. The Oregon court’s decision to
refuse to apply Lilly to Jones’s Confrontation Clause claim was therefore contrary
to clearly established federal law. See Forn, 343 F.3d at 996.
But that does not end our inquiry. A violation of the Confrontation Clause is
subject to harmless error analysis. Welchel v. Washington, 232 F.3d 1197, 1205
(9th Cir. 2000). Accordingly, we must determine whether the admission of the
confession “had substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 637 (1993) (internal quotations
omitted). An error has substantial and injurious effect when the error “had or
reasonably may be taken to have had [effect] upon the jury’s decision.” Whelchel,
232 F.3d at 1206 (internal quotations and citation omitted).
Here, the other evidence that implicated Jones was substantial. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (articulating non-exclusive list
of factors to consider when determining substantial influence). Even without the
accomplice’s confession, it seems unlikely that the jury would have believed
Jones’s implausible testimony, which included self-incriminating statements and
contradicted several inconsistent tales he told the police. See id. We conclude that
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the jury’s decision would not have been affected had the confession been excluded
from trial, so the erroneous admission of the confession did not have a substantial
and injurious effect.
AFFIRMED.
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