Patrick Pierce v. Darrell Adams , 506 F. App'x 581 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PATRICK ANDREW PIERCE, No. 10-15214
Petitioner-Appellant, D.C. No. 2:06-cv-01622-NRS
v.
MEMORANDUM *
DERRAL G. ADAMS, Warden
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
N. Randy Smith, Circuit Judge, Presiding
Argued and Submitted January 16, 2013
San Francisco, California
Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**
A California jury convicted Patrick Andrew Pierce (“Pierce”) of sexually
abusing his step-daughter, Susan L. (“Susan”). Pierce had previously been charged
in North Carolina with assaulting Susan, and that trial ended in a split verdict.
During the California trial, after defense counsel suggested that Susan might alter
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
her testimony in order to avoid the partial acquittal that occurred in North Carolina,
the judge permitted Susan to testify, over Pierce’s objection, that after the previous
trial the North Carolina jurors told her that they believed her but had to acquit on
some counts due to confusion in the testimony. The California Court of Appeal
rejected Pierce’s challenges to the admission of this evidence and affirmed his
convictions. The California Supreme Court denied review.
Pierce then sought habeas relief, arguing that the introduction of this
testimony violated his Sixth Amendment right to confrontation and his Fourteenth
Amendment right to due process of law. He also argued that his trial counsel
provided ineffective assistance by failing to object to the introduction of the
testimony under a California rule barring evidence of jurors’ mental impressions,
and that his appellate counsel provided ineffective assistance by failing to raise this
trial-level ineffective assistance claim. The district court rejected these arguments.
We affirm.
I.
Our review of the district court’s denial of Pierce’s habeas corpus petition is
de novo. E.g., Carrera v. Ayers, 699 F.3d 1104, 1106 (9th Cir. 2012) (en banc). In
order to obtain relief, Pierce must show that the state judiciary’s adjudication of his
claims resulted in a decision that was contrary to, or involved an unreasonable
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application of, clearly established federal law, as determined by the Supreme Court
of the United States. 28 U.S.C. § 2254(d)(1); Cudjo v. Ayers, 698 F.3d 752, 761
(9th Cir. 2012).
II.
Pierce first argues that Susan’s testimony regarding the North Carolina
jurors’ statements constituted inadmissable hearsay under Crawford v.
Washington, 541 U.S. 36 (2004), violating his Confrontation Clause rights. Pierce
fails to show that the statements at issue qualify as “testimonial” hearsay to which
the Confrontation Clause applies. See Davis v. Washington, 547 U.S. 813, 821-22
(2006). The statements were not made to a government officer with an eye toward
trial, Jensen v. Pliler, 439 F.3d 1086, 1089 (9th Cir. 2006), or for the purpose of
establishing or proving some fact, Delgadillo v. Woodford, 527 F.3d 919, 927 (9th
Cir. 2008). Even if the statements were testimonial, the trial court admitted them
not for their truth, i.e., that the North Carolina jurors actually believed Susan, but
for their effect on Susan, i.e., to rebut the defense suggestion that Susan altered her
testimony in the California trial in order to avoid the partial acquittal that occurred
in North Carolina. See Crawford, 541 U.S. at 60 n.9; Moses v. Payne, 555 F.3d
742, 755-56 (9th Cir. 2009).
Pierce next argues that Susan’s testimony regarding the North Carolina
jurors’ statements amounted to impermissible “vouching” for her credibility.
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Pierce cites no Supreme Court decision finding a due process violation based on
the improper admission of evidence; absent such authority, under AEDPA, federal
courts are without power to grant the writ. Holley v. Yarborough, 568 F.3d 1091,
1101 (9th Cir. 2009). Even if clearly established federal law allowed habeas relief
based on vouching, nothing of the sort occurred here. No witness testified that
Susan was telling the truth, nor did the prosecutor or trial judge vouch for her
credibility. Pierce cites no case finding constitutional error in a witness testifying
that someone else told her they believed her.
Finally, Pierce argues that effective trial counsel would have (also) objected
to the admission of the North Carolina jurors’ statements under California
Evidence Code § 1150, and that effective appellate counsel would have argued that
trial counsel was ineffective for failing to make this objection. The district court
found these claims untimely, as Pierce first raised them after the expiration of the
statute of limitations in an amended petition, which did not “relate back” to the
original petition. See Mayle v. Felix, 545 U.S. 644, 649-50 (2005). We need not
decide whether the district court was correct in this ruling, as we agree with its
alternate conclusion that the claims fail on the merits. Section 1150 applies to
post-verdict challenges, People v. Allen, 264 P.3d 336, 344 n.10 (Cal. 2011), and
the testimony at issue here was not presented as part of an attack on the validity of
the prior North Carolina verdict. Further, the testimony was presented for the
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effect on Susan, not “the effect of such statement, conduct, condition, or event
upon a juror.” Cal. Evid. Code § 1150(a). Pierce cites no case holding that § 1150
is implicated when a previous verdict is discussed in a subsequent trial. Because a
lawyer is not required to make a futile objection, see, e.g., James v. Borg, 24 F.3d
20, 27 (9th Cir. 1994), Pierce’s trial counsel did not perform deficiently in failing
to raise § 1150, and thus Pierce’s appellate counsel did not perform deficiently in
failing to argue that trial counsel was ineffective.
III.
For the foregoing reasons, we affirm the district court’s judgment.
AFFIRMED.
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