NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 2 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRK EDWARD CAMPBELL, No. 19-15880

Petitioner-Appellee, D.C. No. 2:15-cv-01986-KJM-GGH v.

DANIEL PARAMO, Warden, MEMORANDUM*

Respondent-Appellant.

KIRK EDWARD CAMPBELL, No. 19-15882

Petitioner-Appellant, D.C. No. 2:15-cv-01986-KJM-GGH v.

DANIEL PARAMO, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted November 16, 2020 San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Kirk Campbell was convicted in California state court of nine drug-related

offenses and being a felon in possession of a firearm. His convictions were affirmed

on direct appeal. Campbell subsequently sought state habeas relief and the

California Supreme Court summarily denied review. Campbell then filed a federal

habeas petition under 28 U.S.C. § 2254.

The district court denied Campbell’s habeas petition as to the firearm count.

But it granted the petition as to the drug counts. The district court held that the state

trial court erred under Miranda v. Arizona, 384 U.S. 436 (1966), by allowing an

officer to testify about Campbell’s reaction to a photograph shown to him after he

invoked his Miranda rights, and later violated the Sixth Amendment by failing to

alert defense counsel to the jury’s request for certain information. The district court

held that neither error was prejudicial on its own, but that the errors were

cumulatively prejudicial. California appeals the grant of habeas relief as to the drug

counts. Campbell cross-appeals the denial of habeas relief as to the firearm count.

We review de novo a district court’s decision to grant or deny a habeas petition.

Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We reverse in part and affirm in

part.

1. Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Campbell must show that the state court’s denial of relief was “contrary

to, or involved an unreasonable application of, clearly established Federal law as

2 determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).

When, as here, “a state court’s decision is unaccompanied by an explanation, the

habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98

(2011).

Under AEDPA’s deferential standard of review, the district court erred in

granting Campbell habeas relief as to the drug counts. We will assume that the state

trial court violated Campbell’s Miranda and Sixth Amendment rights, and that those

constitutional violations were clearly established for purposes of AEDPA. Even

with those assumptions, the California Supreme Court could have reasonably

concluded that the asserted errors were harmless, both on their own and

cumulatively.

Both alleged errors are subject to harmless error review. See Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993) (Miranda violations); United States v.

Mohsen, 587 F.3d 1028, 1032 (9th Cir. 2009) (per curiam) (harmless error review

applies to ex parte response to jury communication that “made no substantive

inquiry about the facts or the law”). A constitutional error in this context is harmless

unless it had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008) (citing Brecht,

507 U.S. at 623). But under AEDPA, our review is “‘more forgiving’ to state court

3 errors than the harmless error standard the Supreme Court applies on its direct review

of state court convictions.” Id. (citing Fry v. Pliler, 551 U.S. 112, 116 (2007)). We

cannot grant relief unless “the harmlessness determination itself was unreasonable.”

Fry, 551 U.S. at 119; see also Davis v. Ayala, 576 U.S. 257, 269 (2015).

The district court found that each alleged error was harmless on its own. We

agree. But it would not have been objectively unreasonable for the California

Supreme Court to conclude that the two errors, which were not prejudicial

individually, were also not prejudicial cumulatively. There was overwhelming

evidence that the drugs in the car belonged to Campbell. See Parle v. Runnels, 387

F.3d 1030, 1044 (9th Cir. 2004) (reversing grant of habeas relief based on

“overwhelming evidence” of guilt). The Ford Escort Campbell was driving

contained substantial amounts of drugs and drug paraphernalia. Campbell

acknowledged the car was his and that he had been driving it for years. Paperwork

in the car supported this. A later search of the garage where Campbell lived

uncovered drug paraphernalia on a shelf that was labeled “Kirk’s don’t touch,” as

well as drug packaging materials that matched those found in the trunk of the car.

Campbell also made incriminating statements on a phone call to his girlfriend from

jail.

In addition, while Campbell’s passenger, Rodney Tindell, purported to take

responsibility for the drugs, Tindell’s testimony was not plausible. Among other

4 things, Tindell did not claim responsibility until years after the fact; implausibly

claimed the drugs (worth several thousand dollars) had been given to him as

repayment for a debt of “[a] couple hundred” dollars; and his testimony was

inconsistent with the photo of where the drugs were found.

The circumstances specific to each alleged constitutional error further

demonstrate that the California Supreme Court could have reasonably concluded the

errors were harmless. The Miranda error was premised on the trial court’s admission

of Detective Buckenmeyer’s testimony that Campbell turned “red” and appeared

“upset” when shown a photograph of a black bag located in the car trunk. But

Campbell testified that his reaction to the photo was one of “shock,” not guilt. The

prosecution also did not comment further about Buckenmeyer’s testimony about

Campbell’s reaction to the photo, which was but a small part of the officer’s overall

testimony.

The second alleged error is premised on the readback of Buckenmeyer’s

testimony recalling Campbell’s phone call to his girlfriend from jail. Campbell

claims the state trial court violated the Sixth Amendment because when the jury

asked for Buckenmeyer’s “transcript” of the phone call (no such transcript was

admitted), the trial court had Buckenmeyer’s trial testimony about his recollection

of the call read back to the jury, allegedly without informing defense counsel about

the jury’s request. But the jury had already heard Buckenmeyer’s testimony, and

5 Campbell does not contest the accuracy of Buckenmeyer’s description of the call.

This testimony was also but one part of the State’s evidence against Campbell.

In sum, because the state court could have reasonably found any errors

harmless, the district court erred in granting habeas relief on the drug counts.

2. We reject Campbell’s alternative assertion of error based on the

exclusion of evidence about Tindell’s criminal record. As noted, Tindell’s testimony

was not plausible. And given the uncertain factual basis for the excluded evidence

and its questionable relevance, Campbell has not shown the state court’s decision

was erroneous “beyond any possibility for fairminded disagreement.” White v.

Woodall, 572 U.S. 415, 421 (2014) (quotations omitted). Nor has Campbell shown

the exclusion of this evidence was prejudicial.

3. We affirm the district court’s denial of habeas relief on the firearm

count. The alleged errors, which related to Campbell’s knowledge of the drugs in

his car, bear no apparent relationship to the firearm count, which was supported by

overwhelming evidence.

AFFIRMED IN PART; REVERSED IN PART.

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