NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRANCE L. VARNER, No. 16-15771

Petitioner-Appellant, D.C. No. 3:14-cv-02218-EMC

v.

DAVE DAVEY, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted March 14, 2018 San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior District Judge.

Petitioner Terrance L. Varner (“Varner”) appeals from the district court’s

denial of his petition for a writ of habeas corpus under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. under 28 U.S.C. § 2253. Reviewing the district court’s denial de novo, see Lopez v.

Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), we affirm.

Varner was convicted by a California state court jury of second degree

murder and felon in possession of a firearm. The jury also approved an

enhancement that provides for an additional term of 25 years to life in prison if, in

the commission of a murder, a defendant “personally and intentionally

discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death.”

Cal. Penal Code § 12022.53(d). Varner alleges numerous constitutional

deficiencies in the trial that resulted in these verdicts.

Under AEDPA’s highly deferential standard of review, Varner can obtain

relief on claims that have been “adjudicated on the merits in State court

proceedings” only if the last reasoned opinion of the state courts resulted in a

decision that either was (1) “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States” or (2) “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see

also Deck v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2014). Moreover, even where

there was error, Varner is entitled to relief only if he can establish that such error

resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). “Under this test, relief is proper only if the federal court has ‘grave doubt

2 about whether a trial error of federal law had substantial and injurious effect or

influence in determining the jury’s verdict.’” Davis v. Ayala, 135 S. Ct. 2187,

2197-98 (2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This

highly deferential standard subsumes the “more liberal AEDPA . . . standard which

requires only that the state court’s harmless-beyond-a-reasonable-doubt

determination [under Chapman v. California, 386 U.S. 18 (1967)] be

unreasonable.” Fry v. Pliler, 551 U.S. 112, 120 (2007). Therefore, if the state court

made a harmlessness determination, it is a necessary but not sufficient condition

for relief that “the [state court’s] harmlessness determination itself was

unreasonable.” Id. at 119. A state court’s harmlessness determination is

unreasonable only if it is “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Ayala, 135 S. Ct. at 2199 (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)).

Varner first challenges on due process grounds the jury instructions on the

special enhancement under California Penal Code § 12202.53(d) and on aiding and

abetting. “[A] jury instruction violates due process if it fails to give effect to th[e]

requirement” that the state prove every element of a criminal offense beyond a

reasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437 (2004). However, “not

every . . . deficiency in a jury instruction rises to the level of a due process

3 violation,” id., and “[a]n omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law,” Henderson v. Kibbe, 431 U.S. 145, 155

(1977).

Varner argues that the jury instructions on California Penal Code §

12202.53(d) violated his right to due process because they did not provide a

definition of “proximate cause.”1 Although this omission may have been erroneous

under state law, it did not violate “clearly established federal law.” To the contrary,

the Supreme Court has found no due process violation where the challenged jury

instruction, like the instruction here, “parroted the language of the statute.”

Waddington v. Sarausad, 555 U.S. 179, 190-96 (2009). Moreover, even if there

were a federal error, we see no reason to doubt the state court’s conclusion that any

error was harmless because, a lay juror’s conception of proximate cause is likely

no broader than that conveyed by the omitted instruction.

Varner’s argument regarding the trial court’s failure to instruct the jury on

concurrent causation is unavailing as well. Under California law, an act is a

concurrent cause of death if it is a “substantial factor” contributing to the victim's

death. People v. Bland, 48 P.3d 1107, 1122 (Cal. 2002). Here, the coroner testified

that Ogden’s death was caused by multiple gunshot wounds. Based on that

1 The jury was given the following instruction: “If you find the defendant guilty, you must determine whether the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to [the victim].”

4 testimony, the state court reasonably concluded that the trial court’s failure to

instruct the jury on concurrent causation was harmless.

With respect to the instructions on aiding and abetting, it is settled law in

California that an aider and abettor’s mental state must be at least that required of

the direct perpetrator. People v. McCoy, 25 Cal. 4th 1111, 1118 (2001). Here,

however, the aiding-and-abetting instruction permitted the jury to find Varner

guilty of aiding and abetting second degree murder even if he acted with a lesser

mens rea than that required of the direct perpetrator of second degree murder.

Varner argues that, as a result, the jury could have found that he “acted with a less

culpable mental state than the implied malice required for second-degree murder.”

The state court reasonably held that any such error was harmless. The jury found

that Varner personally and intentionally discharged a firearm, and no evidence

suggested that any of the shots fired were not aimed at the victim. We therefore see

little chance that the jury found that Varner acted with anything less than implied

malice.2

2 Varner erroneously argues that the state court’s harmlessness determinations warrant no deference because the court failed to evaluate harmlessness “in light of the record as a whole,” instead viewing the evidence in the light most favorable to the prosecution. We disagree. First, in finding the error in the aiding and abetting instruction harmless, the district court relied exclusively on the jury’s finding on the enhancement, and not on any analysis of the record. Second, regarding the enhancement instruction, the mere fact that the state court concluded that the jury could have found that Varner “proximately caused” the victim’s death, notwithstanding some evidence to the contrary, does not support an inference that

5 Varner also raises claims under the Constitution’s Confrontation Clause. The

Confrontation Clause of the Sixth Amendment provides 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. “A witness’s testimony against a

defendant is thus inadmissible unless the witness appears at trial or, if the witness

is unavailable, the defendant had a prior opportunity for cross-examination.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009). The state court found

that Varner failed to establish any Confrontation Clause violation.

First, Varner objects to the admission of the preliminary hearing testimony

of a witness named DeAngelo Hudson, which the trial court admitted after

deeming Hudson an “unavailable witness” on the grounds that Hudson had

properly invoked his Fifth Amendment privilege against self-incrimination and

refused to testify, even after the court raised the prospect of criminal contempt.

Applying the highly deferential standard set forth in Brecht, 507 U.S. 619, we

conclude that, even if erroneously admitted, Hudson’s preliminary hearing

testimony did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Davis v. Ayala, 135 S. Ct. 2187, 2198-99 (2015)

(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). As Varner’s counsel

the state court failed to review the entire record. This is especially true since the state court extensively recounted all the testimony offered at the trial in its opinion.

6 correctly acknowledged on appeal, Hudson’s preliminary hearing testimony was

“cumulative,” and “the prosecution did not need [Hudson’s] testimony to prove its

case.” Hudson’s testimony that he witnessed Varner shoot at the victim was

cumulative because three other eyewitnesses admitted in earlier statements to

seeing Varner shoot at Ogden as well. In light of this testimony, we conclude that

any error in admitting Hudson’s preliminary hearing testimony was harmless.

Second, Varner argues that the trial court erred by admitting the pretrial

statement of a witness named Carl Anthony. The state court reasonably concluded

that the admission of this statement did not deprive Varner of his rights under the

Confrontation Clause because Anthony was available for cross-examination.

“[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” United States v. Owens, 484 U.S. 554,

559 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987)). It was

therefore not an unreasonable application of Supreme Court precedent for the state

court to conclude that a witness is not rendered unavailable for cross-examination

simply by feigning memory loss. Felix v. Mayle, 379 F.3d 612, 617-18 (9th Cir.

2004) (citing Owens, 484 U.S. at 564), overruled on other grounds by Mayle v.

Felix, 545 U.S. 644 (2005).

Varner next contends that the prosecutor misstated the law of voluntary

7 manslaughter during her closing rebuttal argument and that this statement

amounted to prosecutorial misconduct in violation of his due process rights.

Specifically, the prosecutor described as the “standard example” of a provocation

that would qualify for the heat-of-passion defense an example that was, at best,

extreme and, quite possibly, erroneous under California law. See People v. Najera,

41 Cal. Rptr. 3d 244, 251 (Ct. App. 2006). The state court held in this case,

however, that the prosecutor’s example neither misrepresented the heat-of-passion

defense nor distorted the given jury instructions.

“[T]he touchstone of due process analysis in cases of alleged prosecutorial

misconduct is the fairness of the trial.” Smith v. Phillips, 455 U.S. 209, 219 (1982).

The context in which the prosecutor’s comment was made in this case

demonstrates that the comment did not render the trial fundamentally unfair, even

if it was legally incorrect. As an initial matter, the Supreme Court of the United

States has explained that a “prosecutor’s comments must be evaluated in light of

the defense argument that preceded it,” and accordingly found no due process

violation where, like here, “the objectionable content was invited by or was

responsive to the opening summation of the defense.” Darden v. Wainwright, 477

U.S. 168, 179, 182 (1986). Furthermore, “arguments of counsel generally carry

less weight with a jury than do instructions from the court. The former are usually

billed in advance to the jury as matters of argument, not evidence, and are likely

8 viewed as the statements of advocates,” whereas the latter “are viewed as definitive

and binding statements of the law.” Boyde v. California, 494 U.S. 370, 384 (1990).

Indeed, the trial court instructed the jury on voluntary manslaughter, and those

instructions are unchallenged. The court also instructed the jury that it must accept

the law as stated by the court and that if anything concerning the law said by

attorneys in their arguments conflicted with the court’s instructions, the jury must

follow the court’s instructions. Therefore, the state court reasonably concluded that

the prosecutor’s example of provocation did not violate Varner’s due process

rights.

Finally, Varner raises three ineffective assistance of counsel claims. The

Sixth Amendment’s right to counsel guarantees effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984). Counsel’s conduct is

ineffective if it so undermined the proper functioning of the adversarial process

that the trial cannot be relied upon as having produced a just result. Id. In order to

prevail on a Sixth Amendment ineffectiveness of counsel claim, a petitioner must

establish two things: (1) counsel’s performance was deficient and fell below an

“objective standard of reasonableness” under prevailing professional norms, id. at

687-88; and (2) defendant was prejudiced by counsel’s deficient performance, i.e.,

that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different,” id. at 694. A reasonable

9 probability is a probability sufficient to undermine confidence in the outcome. Id.

Here, the state court held that Varner had not shown prejudice as to any of his three

ineffective assistance of counsel claims. We see nothing unreasonable about that

determination.

First, Varner argues that trial counsel rendered ineffective assistance of

counsel by withdrawing a request for a cautionary accomplice jury instruction.

This instruction would have advised the jury, among other things, that the jury

could not find Varner guilty based on the testimony of an accomplice unless the

testimony was corroborated by other evidence and that the jury should view an

accomplice’s testimony tending to incriminate a defendant with caution. See Cal.

Jury Instructions 3.11; Cal. Jury Instructions 3.16. Trial counsel initially requested

that the court instruct the jury about accomplice testimony but then withdrew the

request during the jury instruction conference.

Counsel had good reason to withdraw the request: (i) it was questionable

whether the relevant witness even was an accomplice; (ii) the requirement that the

accomplice’s testimony be corroborated, which requires only “slight”

corroborating evidence and not on every detail, was met in this case; (iii) the fact

that the relevant witness potentially stood to gain by testifying against petitioners

was made known to the jury by virtue of the fact that he was in jail awaiting

sentencing in an unrelated case, such that there was less need for instruction on

10 viewing his testimony with caution; and (iv) the witness testified to some things

that were helpful to the defense.

Moreover, “Strickland specifically commands that a court ‘must indulge

[the] strong presumption’ that counsel ‘made all significant decisions in the

exercise of reasonable professional judgment.’” Cullen v. Pinholster, 563 U.S. 170,

196 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 690). Petitioners

show no reason to disregard that strong presumption here. Cf. Knowles v.

Mirzayance, 556 U.S. 111, 122-24 (2009) (abandoning a defense that has “almost

no chance of success” is reasonable, even if there is “nothing to lose” by

preserving the defense).

Second, Varner argues that trial counsel provided ineffective assistance in

failing to timely object to the prosecutor’s alleged misstatement of the law

regarding heat-of-passion and voluntary manslaughter. As discussed above, the

state court was justified in finding that the prosecutor’s argument did not make a

difference at trial. It was therefore not an unreasonable application of Strickland to

conclude that this ineffective-assistance claim failed for lack of prejudice.

Third, and finally, Varner alleges that appellate counsel provided ineffective

assistance because they failed to present in their appellate brief the foregoing

claims for ineffective assistance of counsel. To determine whether appellate

counsel’s failure to raise a claim of ineffective assistance of trial counsel was

11 objectively unreasonable and prejudicial, the district court must first assess the

merits of the underlying claim that trial counsel provided constitutionally deficient

performance. Moormann v. Ryan, 628 F.3d 1102, 1106-07 (9th Cir. 2010). If trial

counsel’s performance was not objectively unreasonable or did not prejudice the

petitioner, then appellate counsel did not act unreasonably in failing to raise a

meritless claim of ineffective assistance of counsel, and the petitioner was not

prejudiced by appellate counsel’s omission. Id. As explained above, the ineffective

assistance of trial counsel claims do not warrant habeas relief. Appellate counsel

therefore was not ineffective in not raising these claims as a basis for reversal on

appeal, and the California Supreme Court’s rejection of the ineffective assistance

of appellate counsel claims of petitioners was not contrary to or an unreasonable

application of clearly established precedent.

AFFIRMED.

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