NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 9 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEIF TAYLOR, No. 16-55411

Petitioner-Appellant, D.C. No. 2:11-cv-10393-AG-JC v.

RAYMOND MADDEN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted November 15, 2017 Pasadena, California

Before: RAWLINSON** and OWENS, Circuit Judges, and RESTANI,*** Judge.

Petitioner Leif Taylor (“Taylor”) appeals from the district court’s denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski’s retirement, Judge Rawlinson was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Rawlinson has read the briefs and reviewed the record. *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. his petition for a writ of habeas corpus. As the parties are familiar with the facts,

we do not recount them here. We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.

1. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

provides the appropriate standard of review. Taylor contends that we may review

de novo whether the state trial court complied with the conditional writ of habeas

corpus that this court ordered in Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004).

Although federal courts have authority to directly review whether states have

complied with earlier orders conditionally granting relief, see Leonardo v.

Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011), we decline to do so here. The

claims before us were raised by Taylor in a habeas petition that alleged the state

court violated his due process rights. We therefore apply AEDPA.

2. The California Court of Appeal did not unreasonably apply federal

law in deciding that the trial court did not abuse its discretion in denying Taylor’s

motion for a mistrial.1 See Renico v. Lett, 559 U.S. 766, 772–73 (2010). Taylor

argues that his due process rights were violated when a witness at his retrial

referenced his unlawfully-obtained, inadmissible confession, see Taylor, 366 F.3d

at 1018, and that the trial court should have granted his motion for a retrial on this

1 Because the California Court of Appeal provided the last reasoned state court decision, we “look through” to that decision. See Cannedy v. Adams, 706 F.3d 1148, 1158–59 (9th Cir. 2013).

2 basis. Though the U.S. Supreme Court has recognized that “[a] confession is like

no other evidence,” Arizona v. Fulminante, 499 U.S. 279, 296 (1991), and has

required state courts to retry defendants without unlawfully-obtained confessions,

id. at 302, the Court has never held that a defendant’s constitutional rights are

violated based on a witness’s reference to a confession. The California Court of

Appeal recognized this distinction in denying Taylor’s appeal.

Moreover, the U.S. Supreme Court has also held that unlawfully-obtained

confessions improperly admitted at trial are subject to harmless error review. See

Fulminante, 499 U.S. at 306–12. As the California Court of Appeal recognized,

the witness’s reference to the confession was ambiguous: Taylor’s associates had

already testified that Taylor admitted to shooting the victim. Any harm was further

mitigated by the trial court’s instruction to the jury that they should disregard any

testimony alleging that Taylor made a statement amounting to a confession and

that they should determine for themselves whether any statement rose to the level

of an admission or a confession. We therefore find that the reference to Taylor’s

confession was harmless error beyond a reasonable doubt. See Chapman v.

California, 386 U.S. 18, 24 (1967).

3. The California Court of Appeal was not “objectively unreasonable” in

applying Jackson v. Virginia, 443 U.S. 307 (1979), and concluding that sufficient

evidence supported Taylor’s murder conviction. See Cavazos v. Smith, 565 U.S. 1,

3 2 (2011) (per curiam). The California Court of Appeal found there was sufficient

evidence based on (1) testimony by two witnesses stating that they heard Taylor

admit to shooting the victim, (2) testimony by another witness identifying Taylor’s

alleged accomplice, (3) testimony by another witness who heard Taylor’s alleged

accomplice say something equivalent to “You shot him,” and (4) prior testimony

and statements placing Taylor and his alleged accomplice together the night of the

murder and indicating that one of them said “I think I killed the fool.” On this

record, we cannot say that “no rational trier of fact could have agreed with the

jury.” Id.

4. Taylor has not made “a substantial showing of the denial of a

constitutional right” so as to expand the certificate of appealability to include his

ineffective assistance of counsel claim. 28 U.S.C. § 2253(c)(2); Ninth Circuit Rule

22-1(e). Taylor argues that his counsel’s failure to challenge on Confrontation

Clause grounds a prosecutor’s line of questioning to an unresponsive witness was

unreasonable and prejudicial under Strickland v. Washington, 466 U.S. 668 (1984).

Assuming this line of questioning violated Taylor’s Confrontation Clause rights,

any error was harmless beyond a reasonable doubt. See United States v. Larson,

495 F.3d 1094, 1107–08 (9th Cir. 2007) (en banc). Evidence that the police found

.22 caliber ammunition in Taylor’s home established that Taylor had access to a

.22 caliber gun; the prosecutor’s leading questions were therefore merely

4 cumulative.

AFFIRMED.

5