FILED

NOT FOR PUBLICATION

DEC 28 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRENCE A. MCKNIGHT, No. 19-16631

Petitioner-Appellant, D.C. No. 3:18-cv-01036-VC

v.

MEMORANDUM*

R. JOHNSON; TAMMY FOSS,

Respondents-Appellees.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted December 9, 2020 San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,** District Judge.

Petitioner Terrence A. McKnight appeals the district court’s order denying

his petition for habeas corpus brought pursuant to 28 U.S.C. § 2254. The federal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. district court issued a certificate of appealability on two issues. We have

jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm.1

We review de novo a district court’s denial of a § 2254 petition. Balbuena v.

Sullivan, 980 F.3d 619, 628 (9th Cir. 2020). We review a § 2254 habeas petition

under the “highly deferential standard for evaluating state court rulings.” Id.

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). A federal

court may only grant habeas relief if the state court’s ruling 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)(1), (2). Where, as here, the state

supreme court decision summarily denies the petition for review, we “look

through” the unexplained decision to the last reasoned state decision. Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018).

1. The prosecutor’s repeated references to police broadcasts that described

McKnight a/k/a “Tee Baby,” while highly improper, did not render McKnight’s

trial fundamentally unfair. A defendant’s due process rights are violated only

when a prosecutor’s improper comments before the jury “so infected the trial with

1 We recount the facts only as necessary to resolve the issues on appeal. 2 unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)).

We have no trouble concluding the prosecutor committed misconduct by

making repeated references to hearsay statements that identified Tee Baby as the

shooter. Appellees do not contest this point. The trial court permitted the

description of the shooter to be introduced for the limited purpose of its effect on

the responding police officers’ state of mind.2 The court directed that the hearsay

description was not to be used for the truth of the matter asserted, but the

prosecutor used the hearsay description in his opening statement, elicited the

description from testifying officers, and argued, in his closing argument, that

“[t]his case was cracked within five minutes of [Officer] Gibbs arriving on that

scene. Five minutes. Five minutes . . . . By 3:44 [Officer] Gibbs is given a

description of the shooter that goes by the name of Tee Baby, a black male in all

black.” The prosecutor’s comments were clearly calculated to encourage the jury

2 The California Court of Appeal later held that the description was inadmissible because the officer’s state of mind “had no relevance to the case: all the officers did as a result of the suspect description was look for the suspect in vain.” 3 to draw an impermissible connection between the description of the suspect given

to the police and McKnight’s guilt.

Even though the prosecutor’s comments were improper, the state court

determined “the trial court’s admonitions, as well as the prosecutor’s own

statement that he was relying solely on the identification of the three testifying

eyewitnesses, rendered the error harmless.” This conclusion was not unreasonable.

In Darden, the Supreme Court held that prosecutorial misconduct did not render

the trial fundamentally unfair because “[t]he trial court instructed the jurors several

times that their decision was to be made on the basis of the evidence alone, and

that the arguments of counsel were not evidence,” and the “weight of the evidence

against petitioner was heavy . . . [which] reduced the likelihood that the jury’s

decision was influenced by argument.” 477 U.S. at 182.

Here, the trial court gave the jurors multiple curative instructions following

the prosecutor’s reference to the hearsay description of the suspect including (1)

that “[n]othing counsel say is evidence,” and that (2) the description was only

offered “to show what the subsequent acts and what the police officers were

looking, the intent of the police officers; not for the truth of the matter stated.” The

improper references to the hearsay description were presumptively cured by the

trial court’s instructions. Donnelly, 416 U.S. at 645; Cheney v. Washington, 614

4 F.3d 987, 997 (9th Cir. 2010) (“Jurors are presumed to follow the court’s

instructions.” (internal citations omitted)). Moreover, the other evidence against

McKnight was strong. Three eyewitnesses identified McKnight as the shooter,

evidence showed that one of the victims was suspected of being involved in the

killing of McKnight’s associate, and evidence indicated McKnight fled the area

following the shooting. Thus, the state court could have reasonably concluded that

the prosecutor’s remarks did not render McKnight’s trial fundamentally unfair.

2. The trial court’s murder instruction did not render McKnight’s trial

fundamentally unfair. To reject McKnight’s challenge to the jury instructions, the

California Court of Appeal relied on People v. Kelly, which applied the relevant

federal standard. 1 Cal.4th 495, 525–26 (1992) (citing Estelle v. McGuire, 502

U.S. 62 (1991); Boyde v. California, 494 U.S. 370, 380 (1990)). We therefore

must give due deference to the California Court of Appeal’s conclusions under 28

U.S.C. § 2254(d).

A habeas petitioner must do more than prove that the jury instruction was

“undesirable, erroneous, or even universally condemned” to show that he is

entitled to relief. Donnelly, 416 U.S. at 643. Instead, he must show that the

erroneous instruction “by itself so infected the entire trial that the resulting

conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

5 Here, the trial court instructed the jury “[i]f you decide the defendant

committed murder, you must then decide whether it is murder of the first degree or

second degree.” The court instructed the jury on the unique elements of first

degree murder and explained “second degree murder based on express or implied

malice are explained in instruction number 520, which is the one right before this.”

The court also instructed “[t]he People have the burden of proving beyond a

reasonable doubt that the killing was the first degree murder rather than a lesser

crime. If the People have not met this burden, you must find the defendant not

guilty of first degree murder.” From this, it is reasonable to expect the jury

understood first and second degree murder had distinct elements and what those

elements were. The state court could have reasonably concluded that the jury

instructions in this case did not violate due process.

3. McKnight argues that the admission of the hearsay description of the

suspect at trial violated the Confrontation Clause. U.S. Const. amend. VI. The

district court rejected this argument as raised in McKnight’s § 2254 petition, and

declined to issue a certificate of appealability. “A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

6 The Sixth Amendment’s Confrontation Clause provides “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” “Testimonial statements of witnesses absent from trial”

are admissible “only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine [the witness].” Crawford

v. Washington, 541 U.S. 36, 59 (2004). If a statement is procured with the

“primary purpose of creating an out-of-court substitute for trial testimony,” the

statement is testimonial hearsay and Crawford applies. Michigan v. Bryant, 562

U.S. 344, 358 (2011). If, however, “the primary purpose of an interrogation is to

respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial

and thus is not within the scope of the Clause.” Id. (citing Davis v. Washington,

547 U.S. 813, 823–24 (2006).

Here, the district court concluded that the circumstances under which the

suspect’s description was relayed to police was likely “chaotic” because there had

been a shooting with one fatality. Police responded within minutes but the shooter,

who could have remained armed, was at large in a residential community. Under

these circumstances, the primary purpose of bystanders’ description of the shooter

was likely to enable police to resolve an “ongoing emergency” by apprehending an

armed assailant. Such statements are not testimonial and their admission at trial

7 does not violate the Confrontation Clause. Accordingly, McKnight has failed to

“[make] a substantial showing of the denial of a constitutional right” and we deny

his request for a certificate of appealability as to this issue. 28 U.S.C. § 2253(c)(2).

AFFIRMED.

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