Paul Driver v. Jen Landers

FILED
NOT FOR PUBLICATION JUL 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL LEE DRIVER, No. 10-35757
Petitioner - Appellant, D.C. No. 6:07-cv-01344-TC
v.
MEMORANDUM *
JEN LANDERS, Lincoln County
Probation Officer and AARON FELTON,
Chair of the Oregon Board of Parole,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Submitted June 9, 2011 **
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Petitioner Paul Lee Driver was convicted in Oregon state court of three
counts of sexual abuse in the first degree. All three counts involved a child under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the age of 14. Driver appeals from the district court’s order denying his 28 U.S.C.
§ 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we
affirm.
Driver’s petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Therefore,
Driver must show that the last reasoned Oregon state court 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).
We review de novo the district court’s denial of a habeas corpus petition. Ali v.
Hickman, 584 F.3d 1174, 1181 (9th Cir. 2009).
Driver contends that the state trial court violated his Sixth Amendment right
of confrontation when it excluded extrinsic evidence of the child-victim’s prior
allegations of sexual abuse. We conclude that the district court correctly
determined that Driver was not entitled to habeas relief. Here, Driver does not
argue that he was denied the opportunity to confront the child-victim witness.
Indeed, Driver was able to cross-examine the child-victim directly about the
claimed prior allegation. Rather, Driver argues that the right of confrontation
guaranteed by the Confrontation Clause includes the right to present extrinsic
evidence of prior allegations of sexual abuse to impeach the child-victim witness’s
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credibility. Under AEDPA, Driver must point to clearly established Supreme
Court precedent to support this argument.
To support his claim, Driver relies primarily on Davis v. Alaska, 415 U.S.
308 (1974), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Olden v. Kentucky,
488 U.S. 227 (1988)(per curiam). Although these cases recognize the general
principle that a defendant has a right to cross-examine a complainant or another
accusing witness, none discuss the admission of extrinsic impeachment evidence.
In Davis, the Court explained that the right of confrontation “means more than
being allowed to confront the witness physically,” but that “[t]he main and
essential purpose of confrontation is to secure for the opponent the opportunity of
cross-examination.” 415 U.S. at 315–16 (internal quotation marks and citation
omitted). There, the Court held that a defendant’s Confrontation Clause rights
were violated when he was prohibited from engaging in cross-examination that
was designed to “expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.” Id. at 318.
In Van Arsdall, the Supreme Court found a Confrontation Clause violation
where the trial court had “prohibited all inquiry into the possibility that [the
witness] would be biased as a result of the State’s dismissal of his pending public
drunkenness charge.” 475 U.S. at 679. The Court therefore held that “a criminal
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defendant states a violation of the Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias . .” Id. at 680
Finally, in Olden, the Supreme Court held that a trial court’s refusal to allow
the defendant to impeach the victim’s testimony by cross-examining the victim
about a possible motive to lie deprived him of his Sixth Amendment right to
confrontation. 488 U.S. at 232. The Court emphasized the core of its holding in
Van Arsdall, namely that a trial court should accord a criminal defendant a
reasonable opportunity to conduct cross-examination that might undermine a
witness’s testimony. Id. at 231–32.
Contrary to Driver’s assertion, these cases did not concern extrinsic
evidence, but rather impeachment by cross-examination. The Supreme Court has
never held that the Confrontation Clause requires, in addition to cross-examination,
the admission of extrinsic evidence for the purpose of establishing a witness’s
motive to lie. The absence of any clearly established federal law vitiates a habeas
claim under the AEDPA. See Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir.
2009). Because Driver has failed to demonstrate that the state court’s
determination was “contrary to, or involved an unreasonable application of, clearly
established Federal law,” we affirm the district court’s denial of habeas relief. 28
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U.S.C. § 2254(d)(1); Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419
(2009); see also Lockyer v. Andrade, 538 U.S. 63, 70–71 (2003).
Finally, we note that on appeal, Driver does not challenge the district court’s
order dismissing his Compulsory Process Clause claim. We therefore conclude
that the issue is abandoned. See Collins v. City of San Diego, 841 F.2d 337, 339
(9th Cir. 1988) (“It is well established in this Circuit that claims which are not
addressed in the appellant’s brief are deemed abandoned.”).
AFFIRMED.
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