Kirk Campbell v. Daniel Paramo ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIRK EDWARD CAMPBELL, No. 19-15880
Petitioner-Appellee, D.C. No.
2:15-cv-01986-KJM-GGH
v.
DANIEL PARAMO, Warden, MEMORANDUM*
Respondent-Appellant.
KIRK EDWARD CAMPBELL, No. 19-15882
Petitioner-Appellant, D.C. No.
2:15-cv-01986-KJM-GGH
v.
DANIEL PARAMO, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted November 16, 2020
San Francisco, California
Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Kirk Campbell was convicted in California state court of nine drug-related
offenses and being a felon in possession of a firearm. His convictions were affirmed
on direct appeal. Campbell subsequently sought state habeas relief and the
California Supreme Court summarily denied review. Campbell then filed a federal
habeas petition under 28 U.S.C. § 2254.
The district court denied Campbell’s habeas petition as to the firearm count.
But it granted the petition as to the drug counts. The district court held that the state
trial court erred under Miranda v. Arizona, 384 U.S. 436 (1966), by allowing an
officer to testify about Campbell’s reaction to a photograph shown to him after he
invoked his Miranda rights, and later violated the Sixth Amendment by failing to
alert defense counsel to the jury’s request for certain information. The district court
held that neither error was prejudicial on its own, but that the errors were
cumulatively prejudicial. California appeals the grant of habeas relief as to the drug
counts. Campbell cross-appeals the denial of habeas relief as to the firearm count.
We review de novo a district court’s decision to grant or deny a habeas petition.
Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We reverse in part and affirm in
part.
1. Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Campbell must show that the state court’s denial of relief was “contrary
to, or involved an unreasonable application of, clearly established Federal law as
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determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
When, as here, “a state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98
(2011).
Under AEDPA’s deferential standard of review, the district court erred in
granting Campbell habeas relief as to the drug counts. We will assume that the state
trial court violated Campbell’s Miranda and Sixth Amendment rights, and that those
constitutional violations were clearly established for purposes of AEDPA. Even
with those assumptions, the California Supreme Court could have reasonably
concluded that the asserted errors were harmless, both on their own and
cumulatively.
Both alleged errors are subject to harmless error review. See Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993) (Miranda violations); United States v.
Mohsen, 587 F.3d 1028, 1032 (9th Cir. 2009) (per curiam) (harmless error review
applies to ex parte response to jury communication that “made no substantive
inquiry about the facts or the law”). A constitutional error in this context is harmless
unless it had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008) (citing Brecht,
507 U.S. at 623). But under AEDPA, our review is “‘more forgiving’ to state court
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errors than the harmless error standard the Supreme Court applies on its direct review
of state court convictions.” Id. (citing Fry v. Pliler, 551 U.S. 112, 116 (2007)). We
cannot grant relief unless “the harmlessness determination itself was unreasonable.”
Fry, 551 U.S. at 119; see also Davis v. Ayala, 576 U.S. 257, 269 (2015).
The district court found that each alleged error was harmless on its own. We
agree. But it would not have been objectively unreasonable for the California
Supreme Court to conclude that the two errors, which were not prejudicial
individually, were also not prejudicial cumulatively. There was overwhelming
evidence that the drugs in the car belonged to Campbell. See Parle v. Runnels, 387
F.3d 1030, 1044 (9th Cir. 2004) (reversing grant of habeas relief based on
“overwhelming evidence” of guilt). The Ford Escort Campbell was driving
contained substantial amounts of drugs and drug paraphernalia. Campbell
acknowledged the car was his and that he had been driving it for years. Paperwork
in the car supported this. A later search of the garage where Campbell lived
uncovered drug paraphernalia on a shelf that was labeled “Kirk’s don’t touch,” as
well as drug packaging materials that matched those found in the trunk of the car.
Campbell also made incriminating statements on a phone call to his girlfriend from
jail.
In addition, while Campbell’s passenger, Rodney Tindell, purported to take
responsibility for the drugs, Tindell’s testimony was not plausible. Among other
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things, Tindell did not claim responsibility until years after the fact; implausibly
claimed the drugs (worth several thousand dollars) had been given to him as
repayment for a debt of “[a] couple hundred” dollars; and his testimony was
inconsistent with the photo of where the drugs were found.
The circumstances specific to each alleged constitutional error further
demonstrate that the California Supreme Court could have reasonably concluded the
errors were harmless. The Miranda error was premised on the trial court’s admission
of Detective Buckenmeyer’s testimony that Campbell turned “red” and appeared
“upset” when shown a photograph of a black bag located in the car trunk. But
Campbell testified that his reaction to the photo was one of “shock,” not guilt. The
prosecution also did not comment further about Buckenmeyer’s testimony about
Campbell’s reaction to the photo, which was but a small part of the officer’s overall
testimony.
The second alleged error is premised on the readback of Buckenmeyer’s
testimony recalling Campbell’s phone call to his girlfriend from jail. Campbell
claims the state trial court violated the Sixth Amendment because when the jury
asked for Buckenmeyer’s “transcript” of the phone call (no such transcript was
admitted), the trial court had Buckenmeyer’s trial testimony about his recollection
of the call read back to the jury, allegedly without informing defense counsel about
the jury’s request. But the jury had already heard Buckenmeyer’s testimony, and
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Campbell does not contest the accuracy of Buckenmeyer’s description of the call.
This testimony was also but one part of the State’s evidence against Campbell.
In sum, because the state court could have reasonably found any errors
harmless, the district court erred in granting habeas relief on the drug counts.
2. We reject Campbell’s alternative assertion of error based on the
exclusion of evidence about Tindell’s criminal record. As noted, Tindell’s testimony
was not plausible. And given the uncertain factual basis for the excluded evidence
and its questionable relevance, Campbell has not shown the state court’s decision
was erroneous “beyond any possibility for fairminded disagreement.” White v.
Woodall, 572 U.S. 415, 421 (2014) (quotations omitted). Nor has Campbell shown
the exclusion of this evidence was prejudicial.
3. We affirm the district court’s denial of habeas relief on the firearm
count. The alleged errors, which related to Campbell’s knowledge of the drugs in
his car, bear no apparent relationship to the firearm count, which was supported by
overwhelming evidence.
AFFIRMED IN PART; REVERSED IN PART.
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