NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT R. DORR, No. 19-35498

Petitioner-Appellant, D.C. No. 3:18-cv-00039-JKS

v.

MEMORANDUM*

EARL L. HAUSER,

Respondent-Appellee.

Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding

Submitted June 4, 2020** Anchorage, Alaska

Before: GOULD, WATFORD, and BADE, Circuit Judges.

Robert Dorr appeals from the district court’s order denying his federal

petition for a writ of habeas corpus. We affirm.

1. As a factual matter, the Alaska Court of Appeals reasonably determined

that Dorr was lucid, alert as to space and time, and aware that he was speaking

* 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). Page 2 of 4

with police officers. The transcripts and audio recordings of the interviews reveal

that Dorr appears to have understood the questions he was asked and coherently

responded to them.

The state court reasonably rejected the conclusion offered by Dorr’s medical

expert, Dr. Woods, that Dorr was suffering from delirium when he spoke with the

officers. At an evidentiary hearing, Dr. Woods explained that, in general, the pain

and anxiety medications given to Dorr loosened his inhibitions, leaving him unable

to refrain from speaking freely. Dr. Woods highlighted specific examples of

Dorr’s responses that, in his view, indicated delirium. But the Alaska court

provided reasonable alternative explanations for many of those responses. For

instance, when asked what happened when Dorr and his wife “drove up to the little

supermarket there on Spenard and Wisconsin yesterday morning at about 5:00,”

Dorr responded, “Went to where?” Whereas Dr. Woods concluded that this

response showed cognitive difficulty processing information, the court found that

the question simply could have been confusing—after all, by “supermarket,” the

officer was referring to a gas station convenience store. Accordingly, we conclude

that the Alaska court’s decision was not based on an unreasonable determination of

the facts. See 28 U.S.C. § 2254(d)(2).

2. As a legal matter, the Alaska court’s holding that Dorr’s statements were

voluntary was not contrary to clearly established federal law, as determined by the Page 3 of 4

Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). The closest on-point

Supreme Court case, Mincey v. Arizona, 437 U.S. 385 (1978), is readily

distinguishable. In Mincey, a police officer interviewed the defendant while he

was hospitalized after having been injured during a shootout with other officers.

Id. at 396. Mincey, encumbered by tubes, needles, and a breathing apparatus,

could answer the officer’s questions only by writing his answers down on a piece

of paper. Id. Mincey repeatedly asked the officer to stop interrogating him until

he could obtain counsel, yet the officer continued questioning him for four hours.

Id. at 396, 399–400. Mincey was in unbearable pain, his responses to many

questions were incoherent, he repeatedly lost consciousness during the interview,

and he incorrectly believed that he was being questioned by several officers rather

than just one. Id. at 398–401, 399 n.15. Conversely, here, Dorr was initially

interviewed for only about 40 minutes, he did not ask the officers to leave, and he

was coherent. When Dorr invoked his right to counsel during the interview the

next day, the officers left. The Alaska court’s holding that Dorr’s statements to

police were voluntary was not contrary to or an unreasonable application of

Mincey.

3. Even if the state court erred in admitting Dorr’s statements at trial, any

such error was harmless. Dorr argues that he would not have testified and

subjected himself to a difficult cross-examination had prosecutors not introduced Page 4 of 4

his statements at trial. But given the volume of undisputed evidence establishing

that Dorr shot and killed his wife—including testimony from multiple

eyewitnesses—Dorr’s defense that he acted in the heat of passion during the

shooting all but required him to testify. When Dorr did take the stand, his

testimony was, in relevant part, consistent with his statements to law

enforcement—that he did not intend to kill his wife, but rather shot her in a

moment of panic. On these facts, we cannot say that the introduction of Dorr’s

statements at trial had a substantial and injurious effect or influence in determining

the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993).

AFFIRMED.