Raymond Gibbs v. Patrick Covello

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND LEQUAN GIBBS, No. 17-55456
Petitioner-Appellant,
D.C. No.
v. 2:15-cv-00949-
AB-DFM
PATRICK COVELLO,
Respondent-Appellee.
DEYAA KHALILL, No. 18-55130
Petitioner-Appellant,
D.C. No.
v. 2:15-cv-04947-
AB-DFM
W. L. MONTGOMERY, Acting
Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding
Argued and Submitted April 27, 2020
Pasadena, California
Filed April 28, 2021
2 GIBBS V. COVELLO
Before: Kim McLane Wardlaw, Mary H. Murguia, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
SUMMARY *
Habeas Corpus
The panel affirmed the district court’s denials of
Raymond Gibbs’s and Deyaa Khalill’s habeas corpus
petitions challenging their California state-court murder
convictions after a trial at which the key prosecution witness,
an informant, invoked the Fifth Amendment and refused to
testify, so the court read to the jury a transcript of the
informant’s preliminary-hearing testimony.
This court granted a certificate of appealability as to
whether the admission of the informant’s preliminary-
hearing testimony violated the petitioners’ Sixth
Amendment right to confrontation.
The panel explained that the adequacy of a defendant’s
opportunity for cross-examination turns on the scope of the
cross-examination that the trial court permitted; a restriction
on cross-examination cannot be justified by reference to
other evidence presented. The panel therefore evaluated the
Confrontation Clause claim on the basis of the cross-
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GIBBS V. COVELLO 3
examination that the magistrate permitted at the preliminary
hearing.
Applying AEDPA review, the panel considered the
petitioners’ two theories of why they did not have an
adequate opportunity to cross-examine the informant at the
preliminary hearing. First, the petitioners claimed that they
were prevented from asking the informant some of the
questions they wanted to ask. Reviewing the questions to
which the magistrate sustained objections—as well as the
question to which the informant invoked the Fifth
Amendment—the panel concluded that it was not
unreasonable for the California Court of Appeal to determine
that the questions would not have given the jury a
significantly different impression of the informant’s
credibility. Second, the petitioners claimed that they did not
know to ask other questions because the prosecution did not
turn over all of the relevant information about the informant
until after the preliminary hearing. The panel wrote that
even assuming that the timing of the disclosures implicated
the Confrontation Clause, the California Court of Appeal
could reasonably conclude that questioning based on those
disclosures would not have materially enhanced the
effectiveness of the cross-examination.
COUNSEL
Tracy Casadio (argued) and Mark R. Drozdowski, Deputy
Federal Public Defenders; Amy M. Karlin, Interim Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant Raymond
Lequan Gibbs.
4 GIBBS V. COVELLO
Fay Arfa (argued), Fay Arfa A Law Corporation, Los
Angeles, California, for Petitioner-Appellant Deyaa Khalill.
Lindsay Boyd (argued), Deputy Attorney General;
Stephanie C. Brenan, Supervising Deputy Attorney General;
Susan Sullivan Pithey, Senior Assistant Attorney General;
Lance E. Winters, Chief Assistant Attorney General; Los
Angeles, California, for Respondents-Appellees.
OPINION
MILLER, Circuit Judge:
Raymond Gibbs and Deyaa Khalill were charged with
murder in California state court. The key prosecution
witness was Samuel Feissa, an informant who said that both
men had confessed to the crime. At trial, Feissa invoked the
Fifth Amendment and refused to testify, so the court read to
the jury a transcript of Feissa’s preliminary-hearing
testimony. The jury found Gibbs and Khalill guilty, and the
California Court of Appeal affirmed their convictions. It
held that Gibbs and Khalill had an adequate opportunity to
cross-examine Feissa when he testified at the preliminary
hearing, so the introduction of his testimony at trial did not
violate their Sixth Amendment right to confront the
witnesses against them. Gibbs and Khalill separately
petitioned for a writ of habeas corpus, and the district court
denied their petitions. Because the state court’s decision was
not an unreasonable application of clearly established
federal law, we affirm.
I
On the evening of July 25, 2008, Adiel Quezada was
found shot to death in Los Angeles. Gibbs, Khalill, and a
GIBBS V. COVELLO 5
third defendant were charged with Quezada’s murder. No
eyewitnesses identified the defendants, and no physical
evidence linked them to the crime. At the preliminary
hearing, the prosecution presented the testimony of Feissa,
who said that he was a former member of a criminal street
gang called the 135 Piru and that Gibbs and Khalill were also
members of the gang. According to Feissa, Khalill had
admitted that he and Gibbs killed Quezada. In a separate
conversation, Feissa said, Gibbs too had admitted that he and
Khalill killed Quezada. Feissa also testified that he visited
Khalill’s house and saw guns of the same caliber as those
used in the murder.
Counsel for Gibbs and Khalill cross-examined Feissa.
They asked Feissa a series of questions about his motive to
lie and his potential biases. Under cross-examination, Feissa
testified about the leniency he had received from prosecutors
for crimes he had committed, about cash payments and other
benefits he had received from police officers, and about his
history of drug use and memory problems. During some of
those lines of inquiry, however, the magistrate cut off or
limited the cross-examination. In doing so, the magistrate
emphasized that “[t]here are limitations on cross
examination at a preliminary hearing,” stating that the
proceeding “is not a trial and there is not a jury here.”
Later in the cross-examination, Khalill’s counsel
inquired about a pending investigation into Feissa as a
suspect in another murder. The magistrate stated that “a
limited number of questions” would be allowed on the
subject, so that the proceeding did not “start going into a lot
of extraneous things.” Feissa invoked the Fifth Amendment
and did not respond to any further questions about the
investigation. Gibbs’s counsel asked about Feissa’s
activities with the gang, and Feissa again invoked the Fifth
6 GIBBS V. COVELLO
Amendment. The magistrate denied the defendants’ motion
to strike all of Feissa’s testimony.
After Feissa finished testifying, the defendants argued
that the prosecution had not timely disclosed certain
promises it had made to Feissa in exchange for his
testimony. The prosecution provided additional information
about its promises. Defense counsel objected that they were
not permitted to cross-examine Feissa on those points. The
magistrate did not recall Feissa as a witness.
At trial, Feissa invoked the Fifth Amendment and did not
answer any questions. The court upheld Feissa’s assertion of
the privilege and determined that Feissa was unavailable as
a witness. The court then ordered Feissa’s preliminary-
hearing testimony read to the jury. During the trial, the
prosecution turned over Feissa’s informant file to the
defense. Using that file, the defense presented evidence of
additional cash payments from the police to Feissa (beyond
those they had asked Feissa about at the preliminary
hearing), as well as evidence that the police had determined
Feissa to be an unreliable informant.
At the conclusion of the trial, the jury requested a
readback of Feissa’s preliminary-hearing testimony, along
with that of two other witnesses. After the court asked the
jury to narrow its request, the jury decided to start with
Feissa’s testimony. The next day, the jury returned a verdict
of guilty. The court sentenced Gibbs to imprisonment for
50 years to life. It sentenced Khalill to life in prison without
the possibility of parole.
The California Court of Appeal affirmed. The court held
that Gibbs and Khalill “had an adequate opportunity to
cross-examine Feissa” at the preliminary hearing, and
therefore the trial court did not violate the Sixth
GIBBS V. COVELLO 7
Amendment’s Confrontation Clause when it admitted
Feissa’s preliminary-hearing testimony at trial. The court
explained that Gibbs and Khalill “were allowed to question
[Feissa] about a variety of topics related to his credibility and
his possible motives to be untruthful.” As examples of the
topics that defense counsel had been able to explore, the
court cited “the leniency agreement [Feissa] had entered
into, . . . the length of the sentence he was facing, his failure
to complete community service in another case, his memory
problems and whether those problems were caused by drug
usage, . . . the money he had received for giving information
to law enforcement, [and] his membership in the 135 Piru
gang.” The court acknowledged that the cross-examination
had been limited, but it determined that “[t]he restrictions on
the questioning imposed by the magistrate primarily related
to redundant questioning on matters already covered or
questioning on irrelevant or minor topics.”
After the California Supreme Court denied review,
Gibbs and Khalill each petitioned for a writ of habeas
corpus. The district court denied their petitions. The district
court agreed with the California Court of Appeal that the
“defendants had an adequate opportunity to cross-examine
Feissa at the preliminary hearing” and that the “limitations
on cross-examination during the preliminary hearing were
minor.”
We granted a certificate of appealability limited to the
question “whether the admission of Samuel Feissa’s
preliminary hearing testimony violated [the defendants’]
Sixth Amendment right to confrontation.”
II
The Confrontation Clause of the Sixth Amendment,
made applicable to the States by the Fourteenth Amendment,
8 GIBBS V. COVELLO
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI; Pointer v. Texas,
380 U.S. 400, 406 (1965). The Clause prohibits the
government from introducing “testimonial” hearsay against
the defendant, including “prior testimony at a preliminary
hearing.” Crawford v. Washington, 541 U.S. 36, 68 (2004).
But the government may introduce preliminary-hearing
testimony if the witness is unavailable at trial, so long as the
defendant had “a prior opportunity for cross-examination.”
Crawford, 541 U.S. at 68; accord California v. Green,
399 U.S. 149, 165 (1970) (prosecution may introduce
preliminary-hearing testimony from an unavailable witness
if the testimony was “given under circumstances closely
approximating those that surround the typical trial,”
including the “opportunity to cross-examine”). A witness is
“unavailable” if he invokes the Fifth Amendment to avoid
testifying, as Feissa did here. Green, 399 U.S. at 168 n.17;
United States v. Shayota, 934 F.3d 1049, 1052 (9th Cir.
2019). The admissibility of Feissa’s preliminary-hearing
testimony therefore turns on whether Gibbs and Khalill had
a prior opportunity for cross-examination.
The right to cross-examine guaranteed by the
Confrontation Clause includes not only the right “to delve
into the witness’ story to test the witness’ perceptions and
memory,” but also the right to impeach the witness by
“cross-examination directed toward revealing possible
biases, prejudices, or ulterior motives.” Davis v. Alaska,
415 U.S. 308, 316 (1974). “[T]he exposure of a witness’
motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination.”
Id. at 316–17; accord Pennsylvania v. Ritchie, 480 U.S. 39,
51–52 (1987) (plurality opinion). Cross-examination need
GIBBS V. COVELLO 9
not be “certain to affect the jury’s assessment of the
witness’s reliability or credibility” to implicate the Sixth
Amendment. Fowler v. Sacramento Cnty. Sheriff’s Dep’t,
421 F.3d 1027, 1036 (9th Cir. 2005). Rather, the
Confrontation Clause protects the right to engage in cross-
examination that “might reasonably” lead a jury to
“question[] the witness’s reliability or credibility.” Id.(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)).
Even so, the Confrontation Clause does not confer an
unlimited right to “cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.” Van Arsdall, 475 U.S. at 679 (quoting Delaware v.
Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Instead, the
right to cross-examine is “[s]ubject . . . to the broad
discretion of a trial judge to preclude repetitive and unduly
harassing interrogation.” Davis, 415 U.S. at 316. The
Supreme Court has held that “trial judges retain wide latitude
. . . to impose reasonable limits on . . . cross-examination
based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Van Arsdall, 475 U.S. at 679; see Alford v. United States,
282 U.S. 687, 694 (1931) (A trial court “may exercise a
reasonable judgment in determining when [a] subject is
exhausted” and should “protect [a witness] from questions
which go beyond the bonds of proper cross-examination
merely to harass, annoy or humiliate him.”).
Of course, any “restrictions on a criminal defendant’s
rights to confront adverse witnesses . . . may not be arbitrary
or disproportionate to the purposes they are designed to
serve.” Ortiz v. Yates, 704 F.3d 1026, 1035 (9th Cir. 2012)
(alteration and internal quotation marks omitted) (quoting
10 GIBBS V. COVELLO
Michigan v. Lucas, 500 U.S. 145, 151 (1991)). We have held
that when a reviewing court evaluates a trial court’s
restrictions on cross-examination, it must consider the
relevance of the excluded evidence, the weight of the
interests justifying exclusion, and “whether the exclusion of
evidence left the jury with sufficient information to assess
the credibility of the witness.” United States v. Larson,
495 F.3d 1094, 1103 (9th Cir. 2007) (en banc) (alteration
omitted) (quoting United States v. Beardslee, 197 F.3d 378,
383 (9th Cir. 1999)).
The State urges us to evaluate the trial court’s restrictions
on cross-examination not just within the context of that
examination, but rather “in the context of all the trial
evidence bearing on the witness’s credibility.” Employing
similar reasoning, the California Court of Appeal relied in
part on the fact that “at trial, the trial court allowed the
defense to attack Feissa’s credibility with information that
was ‘not within the four corners of the preliminary hearing
transcript.’” Therefore, the court concluded, the defendants
had an adequate opportunity to impugn Feissa’s credibility
as a witness. That approach finds support in the language of
some of our cases, but we conclude that it is not consistent
with the Confrontation Clause.
In Larson, for example, we said that a limitation on
cross-examination could be justified if the jury had
“sufficient information to assess the credibility of the
witness.” 495 F.3d at 1103 (quoting Beardslee, 197 F.3d
at 383). But we think that that phrase is best understood to
refer to information adduced through cross-examination, not
information that might be presented through other means.
The Sixth Amendment “commands, not that evidence be
reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.”
GIBBS V. COVELLO 11
Crawford, 541 U.S. at 61. Consistent with that principle, we
have observed that “the fact that defense counsel impeached
other witnesses bears no relevance in the confrontation right
analysis.” Slovik v. Yates, 556 F.3d 747, 754 (9th Cir. 2009).
The adequacy of a defendant’s opportunity for cross-
examination therefore turns on the scope of the cross-
examination that the trial court permitted; a restriction on
cross-examination cannot be justified by reference to other
evidence a defendant presented. Van Arsdall, 475 U.S.
at 680; cf. Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011)
(holding that the Confrontation Clause guarantees “the
opportunity to question [a witness] about . . . potential bias,”
but not “to put on an additional witness to refute [the]
responses”).
To be sure, Confrontation Clause errors, like most trial
errors, are subject to harmless-error analysis. Van Ardsall,
475 U.S. at 684; Shayota, 934 F.3d at 1052. If evidence
impeaching a witness were introduced through some other
means, that might be a basis for concluding that a restriction
on cross-examination was harmless. But it would not mean
that there was no error. We must evaluate the Confrontation
Clause claim on the basis of the cross-examination that the
magistrate permitted at the preliminary hearing, and it is to
that issue that we now turn.
III
Gibbs and Khalill advance two theories of why they did
not have an adequate opportunity to cross-examine Feissa at
the preliminary hearing. First, they point out that they were
prevented from asking some of the questions they wanted to
ask, either because the magistrate cut off questioning or
because Feissa invoked the Fifth Amendment. Second, they
say that they did not know to ask other questions because the
12 GIBBS V. COVELLO
prosecution had not yet turned over all of the relevant
information about Feissa. We consider each theory in turn.
At the outset, we emphasize that our review is limited by
the standards prescribed in the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214. As relevant here, AEDPA provides that when
a claim has been “adjudicated on the merits in State court
proceedings,” a federal court may grant relief only if the
state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
AEDPA prescribes a “highly deferential standard for
evaluating state-court rulings.” Lindh v. Murphy, 521 U.S.
320, 333 n.7 (1997). To obtain relief, a petitioner “must
show far more than that the state court’s decision was
‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 141 S.
Ct. 517, 523 (2020) (per curiam) (quoting Virginia v.
LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam)). Rather,
a petitioner “must show that the state court’s decision [was]
so obviously wrong that its error lies ‘beyond any possibility
for fairminded disagreement.’” Id. (quoting Harrington v.
Richter, 562 U.S. 86, 103 (2011)). That standard is “difficult
to meet” because AEDPA “reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Richter, 562 U.S. at 102–03
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(Stevens, J., concurring in the judgment)).
Under AEDPA, “the range of reasonable judgment can
depend in part on the nature of the relevant rule.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). In other
words, “‘[t]he more general the rule’ at issue—and thus the
GIBBS V. COVELLO 13
greater the potential for reasoned disagreement among fair-
minded judges—‘the more leeway [state] courts have in
reaching outcomes in case-by-case determinations.’” Renico
v. Lett, 559 U.S. 766, 776 (2010) (alterations in original)
(quoting Yarborough, 541 U.S. at 664). Here, the relevant
standard is a general one: “[T]rial judges retain wide latitude
. . . to impose reasonable limits on . . . cross-examination,”
and a defendant seeking to establish a Confrontation Clause
violation must show that the trial court exceeded that
latitude. Van Arsdall, 475 U.S. at 679. It follows that “a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009); accord Watson v.
Greene, 640 F.3d 501, 508–09 (2d Cir. 2011).
AEDPA’s deferential standard of review is particularly
important in this case. On the merits, the Confrontation
Clause question is a close one, and if we were answering that
question de novo, we might not reach the same conclusion
as the California Court of Appeal. But that does not mean
that the state court’s decision was unreasonable.
First, we consider Gibbs and Khalill’s claim that they
were prevented from asking Feissa some of the questions
they wanted to ask. As the California Court of Appeal
explained, defense counsel “were allowed to question
[Feissa] about a variety of topics related to his credibility and
his possible motives to be untruthful.” For example, they
were permitted to ask a series of questions about Feissa’s
criminal history and the leniency he had obtained from
prosecutors. Feissa admitted that he had pleaded guilty to a
burglary charge under an agreement that provided for his
release from custody after he testified in this case. He also
admitted that he had pleaded guilty to a drug offense and had
promised to perform community service, but that he had not
14 GIBBS V. COVELLO
in fact performed any service. And he admitted that he was
facing an impending hearing for a probation violation. The
magistrate allowed defense counsel to ask whether Feissa
had talked to prosecutors “about being helped out on [the]
probation violation matter” based on his testimony, but
Feissa said, “I don’t know what that means.”
Counsel asked Feissa about cash rewards and other
favorable treatment that the police had provided to him.
Feissa admitted that a police detective paid him $2,700 in
August 2008—the month following Quezada’s murder—
and another $300 a few months later. He admitted that he
had faced a potential prosecution for a firearms offense but
that the detective had made the case “disappear.” And he
admitted that the same detective had given him a car and had
provided him with a phone number to call so that, as Feissa
described it, “when I got pulled over by sheriffs they would
let me go.”
Counsel also asked Feissa about his drug use and his
memory problems. Feissa admitted that he had told others
that he forgets things because of his history of drug use. He
described his history of using marijuana and cocaine, and he
answered a question about using PCP, which he denied. He
also said that he was not taking medication to treat memory
loss.
To be sure, the magistrate repeatedly cut off lines of
inquiry that defense counsel attempted to pursue. Often, he
did so by pointing out that the proceeding was only a
preliminary hearing, not a trial, and that “[t]here are
limitations on cross examination at a preliminary hearing.”
Of course, once the prosecution sought to introduce the
testimony at trial, any limits on cross-examination could not
be justified on the ground that the testimony was initially
given at a preliminary hearing. Feissa’s testimony could be
GIBBS V. COVELLO 15
admitted at trial only if Gibbs and Khalill had an adequate
opportunity to cross-examine him.
Although some of the magistrate’s stated justifications
may have been inapt, the magistrate also pointed out that
many of the proposed lines of cross-examination were
duplicative of questions that Feissa had already answered or
had answers that were otherwise obvious. For example,
when asked about his potential criminal exposure, Feissa
first responded that he faced “a couple of years” of
imprisonment. When pressed further, he said “five, six or
seven” years. Then he admitted it was seven. Khalill’s
counsel asked, “Okay. Seven years is more than a couple
years, right?” The magistrate sustained an objection to that
question, noting that “we don’t need a discussion if seven is
more than two.”
In another instance, counsel inquired about the drug
charge for which Feissa had promised the district attorney
that he would perform community service in exchange for
leniency. After Feissa admitted that he broke that promise by
not performing the community service, counsel asked Feissa
whether he had also promised the judge that he would
perform the service. The magistrate sustained an objection
to that question, reasoning that “the fact that [Feissa] told
one person as opposed to another person” amounted to
“harping on the same thing.”
Counsel’s desire to repeat some questions was
understandable; Feissa was a remarkably evasive witness.
Arguably, the magistrate should have allowed counsel
greater freedom to try to pin him down. But the question
before us is not whether we would have permitted more
cross-examination, nor is it even whether the magistrate
abused his “wide latitude . . . to impose reasonable limits on
. . . cross-examination.” Van Arsdall, 475 U.S. at 679.
16 GIBBS V. COVELLO
Instead, the question is whether the California Court of
Appeal unreasonably applied clearly established federal law
in holding that the introduction of the preliminary-hearing
transcript at trial did not violate the Confrontation Clause.
Reviewing the questions to which the magistrate sustained
objections—as well as the questions to which Feissa invoked
the Fifth Amendment—we conclude that it was not
unreasonable for the California Court of Appeal to determine
that the questions would not have given the jury “a
significantly different impression of [Feissa’s] credibility.”
Id. at 680. There were indeed many reasons to doubt Feissa’s
credibility, but the jury learned those reasons when it heard
the transcript of his cross-examination.
Second, we consider those questions defense counsel
were unable to ask because the prosecution’s disclosures
about Feissa came only after the preliminary hearing. Gibbs
and Khalill do not argue that the timing of the disclosures
violated the rule of Brady v. Maryland, 373 U.S. 83 (1963),
and they do not explain why the timing of the prosecution’s
disclosures is relevant to the Sixth Amendment issue
presented here. Still less do they point to any “clearly
established Federal law, as determined by the Supreme
Court of the United States” supporting their position. 28
U.S.C. § 2254(d)(1). To the contrary, a plurality of the
Supreme Court has stated that “[t]he ability to question
adverse witnesses . . . does not include the power to require
the pretrial disclosure of any and all information that might
be useful in contradicting unfavorable testimony.” Ritchie,
480 U.S. at 53 (plurality opinion); see Williams v. Bauman,
759 F.3d 630, 636 (6th Cir. 2014); Martir v. Lizarraga,
183 F. Supp. 3d 1064, 1076 (N.D. Cal. 2016).
But even assuming that the timing of the disclosures
implicated the Confrontation Clause, the California Court of
GIBBS V. COVELLO 17
Appeal could reasonably conclude that questioning based on
those disclosures would not have materially enhanced the
effectiveness of the cross-examination. See Van Arsdall,
475 U.S. at 680. First, the disclosures revealed cash
payments from the police to Feissa of about $4,000, in
addition to the $3,000 that counsel had asked about at the
preliminary hearing. But counsel were already able to
question Feissa about his cash payments, and it is unclear
how asking about a somewhat higher dollar amount would
have made any difference. Second, the disclosures revealed
that police detectives ultimately determined Feissa to be an
unreliable informant. Defense counsel presented that fact at
trial through a police officer’s testimony, and Gibbs and
Khalill do not explain what foundation there would have
been for asking Feissa about it—indeed, they do not argue
that Feissa was even aware of the detectives’ opinion. Nor
have they shown how it would have been a fruitful avenue
for cross-examination. Accordingly, we cannot say that no
fair-minded jurist could come to the conclusion reached by
the California Court of Appeal, namely, that Gibbs and
Khalill “had an adequate opportunity to cross-examine
Feissa.” See Richter, 562 U.S. at 102.
AFFIRMED.