Gary Brown v. Mark Nooth

FILED
NOT FOR PUBLICATION OCT 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY CARSON BROWN, No. 13-35711
Petitioner - Appellant, D.C. No. 2:11-cv-01003-SU
v.
MEMORANDUM*
MARK NOOTH,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted October 10, 2014**
Portland, Oregon
Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.
Gary Carson Brown appeals the district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition. Brown’s petition challenges his state court
convictions and sentence stemming from the assault and kidnapping of Lindsey
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Ulrich.1 The State concedes the trial court violated Brown’s Sixth Amendment
Confrontation Clause rights by admitting testimonial statements from a non-
testifying witness, Michelle Hartford, Crawford v. Washington, 541 U.S. 36, 53–54
(2004), but argues the error was harmless. Brown argues the error had a
substantial and injurious effect on the jury’s verdict. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253. We affirm the district court’s order.
We review de novo a district court order denying a petition for writ of
habeas corpus. Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th Cir. 2011). The
Antiterrorism and Effective Death Penalty Act (AEDPA) permits federal courts to
grant a state prisoner habeas 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).
In determining whether a constitutional error was harmless on collateral
review, we examine “the record as a whole” and ask whether the violation had a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)); accord Merolillo v. Yates, 663 F.3d 444, 455
1
The parties are familiar with the facts of this case, so we will not
recount them here.
2
(9th Cir. 2011). We apply the Brecht test “without regard for the state court’s
harmlessness determination.” Ayala v. Wong, 756 F.3d 656, 674 (9th Cir. 2014)
(amended opinion) (quoting Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.
2010)).2 To guide our analysis of the Brecht test, we look to several non-exclusive
factors: “the importance of the testimony, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the testimony,3
the extent of cross-examination permitted, and the overall strength of the
2
Brown argues that “[w]here there is no reasoned opinion by the state
court on the merits, this court should independently review the record, not subject
to the deferential standard that applies under AEPDA.” But the Oregon court is
presumed to have decided that the Crawford error was harmless. Harrington v.
Richter, 131 S. Ct. 770, 784–85 (2011). Because it is more stringent, the Brecht
standard “obviously subsumes” the AEDPA standard for review of a state court
determination of the harmlessness of a constitutional violation. Fry v. Pliler, 551
U.S. 112, 120 (2007) (noting that, because it “makes no sense to require formal
application of both tests,” Brecht alone should be applied).
3
The corroborating evidence in this case was corroborating testimony.
We have said:
While corroborative evidence may, as a general rule, make the
wrongful introduction of other evidence harmless, this concept has no
application where: (1) there was a reason for the jury to doubt the
only eyewitness testimony; (2) the third party testimony was not
exceptionally strong; and (3) the physical evidence connecting the
accused to the crime was limited and explained by [the
defendant’s theory of the case].
Whelchel v. Washington, 232 F.3d 1197, 1208 (9th Cir. 2000). The Whelchel
factors are not implicated here.
3
prosecution’s case.” Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011)
(quoting Whelchel v. Washington, 232 F.3d 1197, 1206 (9th Cir. 2000)).
Considering these factors and all of the evidence presented to the jury, we
conclude Hartford’s erroneously admitted hearsay statements did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 638 (quoting Kotteakos, 328 U.S. at 776). Hartford’s out-of-
court statements pertaining to Brown were limited to Brown’s actions at the
Causey Street apartment. As the district court aptly noted, “[e]ven without
Hartford’s statements, the record clearly showed Petitioner Brown to be an active
participant in Ulrich’s detention at the Causey apartment.” Brown v. Nooth, No.
02:11-CV-01003, 2013 WL 4026179, at *4 (D. Or. Aug. 5, 2013). Ulrich testified
that Brown told her she was not to leave the apartment or be seen by anyone.
Ulrich also testified that Brown was at the apartment “most of the time” during the
four days and was “only gone for a little bit, maybe a day.” Ulrich recounted that
Brown also handled guns in front of her, and said she was afraid that Brown would
“take me somewhere and just shoot me to get everything out of the way.” Ulrich
was not allowed to leave the Causey apartment except in the company of others,
including Brown. When she did go out, Brown “[j]ust always stayed close to” her.
In sum, we conclude Hartford’s statements were not essential to the
4
prosecution’s case, they were cumulative, and the prosecution’s overall case was
strong without them. Ocampo, 649 F.3d at 1114. The erroneous admission of
Hartford’s statements was harmless.
AFFIRMED.
5