NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 30 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD SANDERS, No. 16-55120

Petitioner-Appellant, D.C. No. 2:12-cv-08339-GW-JEM v.

DOMINGO URIBE, Jr., Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted August 9, 2018 Pasadena, California

Before: TASHIMA and CHRISTEN, Circuit Judges, and RUFE,** District Judge.

Petitioner Donald Sanders appeals the district court’s dismissal of his 28

U.S.C. § 2254 habeas corpus petition. This Court granted a certificate of

appealability on the following question: whether the state trial court’s refusal to

strike the testimony of an eyewitness, Lanny Thomas, who declined to answer

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Cynthia M. Rufe, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. certain questions, violated the Confrontation Clause. At trial, Thomas

unequivocally identified Petitioner as one of two gunmen who shot Joel and

Rodney Mason shortly after Rare Breed Motorcycle Club’s grand opening of its

clubhouse in Gardena, California. Thomas also testified that although he had

originally identified the second shooter, referred to as S-1, he realized that he was

mistaken at a police line-up and was unable to identify the individual. During re-

cross examination, Thomas refused to disclose the name or names of persons who

had informed him that his original identification of S-1 was incorrect. Petitioner

asserts that his right to confrontation was violated when the trial court failed to

strike Thomas’s testimony in light of his refusal to answer these questions. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253, and we affirm the

district court’s dismissal of the habeas petition.

1. Denial of a habeas petition is reviewed de novo, and its factual findings are

reviewed for clear error. Poyson v. Ryan, 879 F.3d 875, 887 (9th Cir. 2018).

Under AEDPA, federal courts may grant relief only where the state-court

adjudication of a claim on the merits was either (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” or (2) “based on an unreasonable determination of the facts in

light of the evidence presented.” 28 U.S.C. § 2254(d). Petitioner argues that the

California Court of Appeal erred in both respects. We disagree.

2 2. The California Court of Appeal reasonably concluded that Petitioner’s right

to confrontation was not violated by the trial court’s failure to strike Thomas’s

testimony after he refused to answer certain questions. The Sixth Amendment’s

Confrontation Clause affords a criminal defendant the right to be “confronted with

the witnesses against him.” Crawford v. Washington, 541 U.S. 36, 42 (2004)

(citation omitted). “This has long been read as securing an adequate opportunity to

cross-examine adverse witnesses.” United States v. Owens, 484 U.S. 554, 557

(1988). Here, defense counsel was given “wide latitude” to extensively cross-

examine Thomas on his observations during the shooting, on his identification of

Petitioner, on any inconsistencies in his testimony, and on his refusal to answer

certain questions, thus exposing any potential bias and casting doubt on his

credibility.1 Therefore, the state appellate court’s decision was not contrary to or

an unreasonable application of clearly established federal law.

3. Even if there had been a Confrontation Clause violation, any error was

harmless. Petitioner is “not entitled to habeas relief based on trial error unless [he]

can establish that it resulted in actual prejudice.” Brecht v. Abrahamson, 507 U.S.

1 Petitioner takes issue with the California Court of Appeal’s conclusion that no constitutional violation occurred in part because the questions Thomas refused to answer were collateral to the determination of guilt. The Court of Appeal relied on United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963), which held that a trial court is not required to strike the entirety of a witness’s testimony if the question he refuses to answer pertains to a collateral matter. Because the state appellate court reasonably concluded that counsel had an adequate opportunity to cross- examine Thomas, it is not necessary to determine whether its collateral matters analysis, standing alone, would satisfy the Confrontation Clause.

3 619, 637 (1993) (internal quotation marks and citations omitted). Relevant factors

in determining prejudice include “the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence

of evidence corroborating or contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986).

Thomas’s testimony was in large part either corroborated, cumulative, or

probed extensively on cross-examination. Furthermore, the trial court issued a

limiting instruction directing that jurors could reject Thomas’s testimony if they

believed that he had refused to answer questions or had attempted to conceal

evidence. Most significantly, the prosecution’s case was strong. Both Joel and

Rodney Mason placed Petitioner in the clubroom at the time of the shooting and

Rodney unequivocally identified Petitioner as one of the shooters. Based on this

record, any error was harmless.

4. Petitioner also has not established by clear and convincing evidence that the

California Court of Appeal’s factual determinations were unreasonable.2 Burt v.

2 Appellee asserts Petitioner waived this claim because he failed to assert it in the district court. Petitioner’s pro se petition is to be liberally construed, and seeks relief based on a violation of his right to confront the witnesses against him. In his reply brief, he cites to both § 2254(d)(1) and (d)(2), and notes that the state appellate court’s decision was “based upon an unreasonable determination of the facts.” This claim under § 2254(d)(2) is not waived.

4 Titlow, 571 U.S. 12, 18 (2013). While the state appellate court referred to

Thomas’s refusal to answer only one question, this statement was not objectively

unreasonable because at issue was a single line of questioning on “the identity of

persons who” provided information about the other shooter that Thomas did not

answer. The state appellate court then reasonably rejected Petitioner’s unsupported

assumptions that had Thomas named his sources, it would have led to additional

eyewitnesses or undermined the identification of Petitioner.

5. Because Petitioner failed to establish that the California Court of Appeal’s

decision was contrary to or an unreasonable application of clearly established law,

or based on an unreasonable determination of facts, the district court’s denial of his

habeas petition will be AFFIRMED.

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