NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN LAWRENCE ANTHONY, No. 23-35030

Petitioner-Appellant, D.C. No. 6:20-cv-00511-JE

v.

MEMORANDUM*

GARRETT LANEY,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted December 4, 2023 Portland, Oregon

Before: BERZON, NGUYEN, and MILLER, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BERZON.

In 2007, following a jury trial in Oregon state court, Ryan Lawrence

Anthony was convicted of the 1980 robbery and murders of Ottilia and Casper

Volk. He was sentenced to multiple terms of life imprisonment. After

unsuccessfully pursuing a direct appeal and an application for post-conviction

relief in state court, Anthony filed a petition for a writ of habeas corpus. The

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court denied the petition, and Anthony now appeals. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

We review the district court’s judgment de novo. Panah v. Chappell, 935

F.3d 657, 663 (9th Cir. 2019). Federal habeas review of a state-court conviction is

limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA, when a claim has been

“adjudicated on the merits in State court proceedings,” a federal court may grant

relief only if the state court’s decision “was contrary to, or involved an

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

Supreme Court of the United States,” or “was 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).

AEDPA prescribes a “highly deferential standard for evaluating state-court

rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), requiring a petitioner to

“show far more than that the state court’s decision was ‘merely wrong’ or ‘even

clear error,’” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (per curiam) (quoting

Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam)). To obtain relief, a

petitioner “must show that the state court’s decision [was] so obviously wrong that

its error lies ‘beyond any possibility for fairminded disagreement.’” Id. (quoting

2 Harrington v. Richter, 562 U.S. 86, 103 (2011)); see Gibbs v. Covello, 996 F.3d

596, 603 (9th Cir. 2021).

1. Anthony argues that his counsel on direct appeal was constitutionally

ineffective because counsel did not appeal the state trial court’s denial of his

motion to dismiss the indictment based on a 27-year preindictment delay. The state

post-conviction court rejected that claim. Under AEDPA, “the question is not

whether counsel’s actions were reasonable,” but rather “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.”

Harrington, 562 U.S. at 105; see Strickland v. Washington, 466 U.S. 668, 689

(1984).

We are unable to say that there is no reasonable argument that counsel

satisfied Strickland. At the time of Anthony’s appeal, Oregon courts required a

showing of intentional misconduct to establish a due process violation based on

preindictment delay. See State v. Williams, 125 P.3d 93, 96 (Or. 2005). Although

Oregon later adopted a more permissive standard, even that standard requires a

defendant to “show that . . . the government culpably caused the delay.” State v.

Stokes, 350 Or. 44, 64 (2011). Anthony challenges the trial court’s finding that the

delay was not caused by negligence on the part of the state, but we disagree that

the finding was objectively unreasonable. The state post-conviction court

3 reasonably concluded that “[a]ppellate counsel made a reasonable decision to not

raise the issue on appeal” because it had a low likelihood of success.

2. At trial, the court prevented Anthony from presenting testimony from

William Jackson that a third party, Gary Smith, had confessed to the murders.

Anthony argues that the exclusion of Smith’s out-of-court statements violated his

due-process rights under Chambers v. Mississippi, 410 U.S. 284 (1973). In

Chambers, a defendant charged with murder presented the testimony of a third

party, McDonald, who had signed a confession in which he admitted to killing the

victim. Id. at 287–88. When McDonald repudiated his confession, Chambers

sought to present the testimony of three witnesses to whom McDonald had

admitted the crime. Id. at 288–89. The trial court refused, relying on “a Mississippi

common-law rule that a party may not impeach his own witness.” Id. at 295. The

Supreme Court held that the trial court violated the Due Process Clause because a

“hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id.

at 302. The Court explained that “[t]he hearsay statements . . . were originally

made and subsequently offered at trial under circumstances that provided

considerable assurance of their reliability” because, among other things, each one

was “made spontaneously to a close acquaintance shortly after the murder had

occurred” and was “corroborated by some other evidence in the case.” Id. at 300.

4 Here, the state post-conviction court did not “mechanistically” apply a

hearsay rule. Chambers, 410 U.S. at 302. Rather, it applied a rule under which

statements against penal interest may be introduced if “corroborating

circumstances clearly indicate the trustworthiness of the statement,” State v.

Anthony, 270 P.3d 360, 361 (Or. App. 2012) (quoting State v. Cazares-Mendez,

256 P.3d 104, 108 (Or. 2011)), and it determined, based on its examination of the

record, that Smith was “singularly untrustworthy,” id. In reaching that conclusion,

the court emphasized that Smith’s testimony was “disjointed and evasive,” that

“his supposed ‘confession’ to Jackson . . . was far from detailed,” and that “nothing

in the circumstantial evidence that defendant cites to bolster the theory that Smith

was the perpetrator, and hence that Smith’s ‘confession’ was trustworthy, prove[s]

anything of the sort.” Id. at 361–62.

Without necessarily endorsing all of the state court’s reasoning, we have no

difficulty concluding that the court did not unreasonably apply Chambers.

Although repeated, Smith’s supposed confession was indeed “far from detailed.”

Anthony, 270 P.3d at 362. On one occasion, he said simply that he “did a job in

Lake Oswego,” and on another, that “[m]e and Atherton did that one” while riding

motorcycles. Anthony emphasizes that some witnesses saw motorcycles parked

near the victims’ house and that others saw two men near (although not at) the

house on the night of the murders. That is a far cry from the level of corroboration

5 that was present in Chambers, which included testimony “that McDonald was seen

with a gun immediately after the shooting”; evidence “of [McDonald’s] prior

ownership of a .22-caliber revolver,” the weapon used in the shooting; and, most

critically, “the testimony of an eyewitness to the shooting” who identified

McDonald as the shooter. 410 U.S. at 300. Whether or not we would reach the

same result on de novo review, we cannot say that the state court’s application of

Chambers was “so obviously wrong that its error lies ‘beyond any possibility for

fairminded disagreement.’” Shinn, 592 U.S. at 118 (quoting Harrington, 562 U.S.

at 103).

AFFIRMED.

6

FILED

Anthony v. Laney, No. 23-35030 FEB 2 2024

MOLLY C. DWYER, CLERK

BERZON, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I concur in the majority’s decision on the question of preindictment delay. I

write separately because, unlike the majority, I would hold that excluding evidence

of Gary Smith’s confessions violated Ryan Lawrence Anthony’s constitutional

right to present a defense. I therefore dissent.

Our constitution guarantees criminal defendants “the right to a fair

opportunity to defend against the State’s accusations.” Chambers v. Mississippi,

410 U.S. 284, 294 (1973); see also Gable v. Williams, 49 F.4th 1315, 1329 (9th Cir.

2022). “Few rights are more fundamental than that of an accused to present

witnesses in his own defense.” Chambers, 410 U.S. at 302. Chambers held that

excluding evidence of a third party’s confessions and precluding the defendant

from cross-examining the third party can deprive the defendant of a fair trial. Id. at

300–02. The Supreme Court explained in Chambers that the hearsay confessions

the defendant was precluded from introducing “were originally made and

subsequently offered at trial under circumstances that provided considerable

assurance of their reliability” because (1) the confessions were made

“spontaneously to a close acquaintance shortly after the murder”; (2) the

confessions were “corroborated by some other evidence in the case”; and (3) “each

confession [] was in a very real sense self-incriminatory and unquestionably

1 against interest.” Id. at 300–01. Thus, where the state court rejects defense

evidence that has “persuasive assurances of trustworthiness” and is “critical” to the

defense, excluding the evidence on hearsay grounds unconstitutionally deprives the

defendant of a fair trial. Id. at 302.

Anthony was precluded from introducing the testimony of William Jackson,

a former close criminal associate of Smith’s, who told police that Smith confessed

to the murders on two occasions. In my view, the state court’s reasons for rejecting

Anthony’s Chambers claim were inconsistent with or unreasonably misapplied

Chambers and also reflected an unreasonable determination of the facts. See 28

U.S.C. § 2254(d) (“AEDPA”). Evidence of Smith’s confessions was undoubtedly

critical to Anthony’s defense, and the confessions were sufficiently corroborated. I

therefore conclude that Anthony’s constitutional right to present a complete

defense was violated.

1. In affirming the exclusion of the evidence, the Oregon Court of Appeals

unreasonably relied on the fact that at the time of the 2007 pre-trial hearing, Smith

“was a self-confessed serial killer, serving five consecutive life sentences,” as a

reason to exclude testimony about Smith’s confessions. State v. Anthony, 247 Or.

App. 582, 585–86 (2012). When Smith first confessed to Jackson in 1980, he was

not in custody nor was he a convicted killer.

Further, the fact that Smith was a “self-confessed serial killer” made his

2 earlier confessions more credible, not less. Smith was a serial killer active in the

same geographic area during the relevant time; he committed multiple random

home invasion burglary-murders that summer in the Portland and southern

Washington areas, some of which involved elderly victims. In some instances,

Smith stabbed his victims to death. That Smith was committing similar crimes in

the same area during the same time period as the murders with which Anthony was

charged significantly tended to corroborate Smith’s confession. The state court’s

elision of this central factor in evaluating whether Smith’s confession was

sufficiently reliable was an unreasonable application of Chambers, as well as an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

Moreover, a third party suspect who has confessed to murder will always, by

definition, be a “confessed [] killer.” Anthony, 247 Or. App. at 585. If the fact that

someone is a confessed killer makes their statements “singularly untrustworthy,”

then no Chambers claim could ever succeed. For example, the hearsay murder

confessions at issue in Chambers, Gable, and Cudjo v. Ayers, 698 F.3d 752 (9th

Cir. 2012), were all made by confessed murderers, yet their confessions were

deemed reliable enough that they should have been presented to a jury. See

Chambers, 410 U.S. at 288–89, 302–03; Gable, 49 F.4th at 1327, 1330; Cudjo, 698

F.3d at 756, 766-68.

2. In addition to failing to recognize the significantly corroborative value of

3 the fact that Smith was a serial killer who was committing similar crimes during

the relevant time period, the Oregon Court of Appeals did not recognize that his

confessions were corroborated in several other key respects. For example, the state

court did not acknowledge that Smith confessed on more than one occasion. The

state court decision refers only to one “confession,” in the singular, Anthony, 247

Or. App. at 585–86, but Smith confessed at least twice: once days after the murder,

and a second time nine months later. Although multiple confessions are not

required for a Chambers claim to succeed, see, e.g., Cudjo, 698 F.3d at 756, the

“number of independent confessions . . . provide[s] additional corroboration for

each,” Chambers, 410 U.S. at 300.

In addition, the state court did not take into account that Smith’s first

confession – that he committed the murders with a man named Keith Atherton –

was made in Atherton’s presence. Rather than deny Smith’s statement at the time it

was made, Atherton responded by “ask[ing] him to be quiet.” Atherton’s failure to

deny Smith’s statement tended to corroborate the confession.

The state court also did not consider that when Smith first confessed, days

after the murder, he had money on him, which was what prompted Jackson to ask

him where he got the money from. The evidence that the victims’ wallets were

both empty tends to corroborate Smith’s confession.

Further, Smith’s second confession indicated that he was riding his

4 motorcycle at the time he and Atherton came upon the victims’ house and

committed the murders. This detail is consistent with evidence that on the day of

the murders as well as the day afterward, witnesses saw two motorcycles parked

across the street from the victims’ residence. One of the motorcycles had a similar

color, engine size, and front panel to Smith’s motorcycle.1 Although the state court

noted that two motorcycles were seen near the victims’ residence, the court failed

to acknowledge that this evidence provided corroboration of Smith’s second

confession, or that the witness reports indicated that one of the motorcycles shared

similar characteristics to Smith’s. See Anthony, 247 Or. App. at 585–86.2

Smith’s admission that he and Atherton committed the murders was also

consistent with eyewitness testimony that on the night of the murders, around

10:20 pm, two men, conspicuously dressed in black hooded coats on a warm

summer night, were in the Safeway parking lot directly across from the victims’

residence, walking toward their house. Although the state court acknowledged this

testimony, the court did not acknowledge that the sighting of two men headed

toward the victims’ house matched Smith’s account that he committed the murder

with Atherton.

3. The state court also erred in rejecting Jackson’s testimony about Smith’s

1 Smith used his motorcycle as transportation in at least one other home invasion burglary-murder the same summer. 2 Anthony did not own a motorcycle at the time.

5 confessions based on Smith’s lack of credibility as a witness at the 2007 pretrial

hearing. See Anthony, 247 Or. App. at 585–86. Smith’s quality as a witness in

2007 was not pertinent. It was Jackson whose testimony Anthony sought to admit,

and Jackson’s testimony concerned statements Smith had made more than two

decades earlier. Further, Smith’s availability as a witness weighed in favor of

admitting Jackson’s testimony. If Smith were called to the stand, the jury could

evaluate for itself whether it believed Smith’s later disavowal of his confessions; if

Smith’s testimony was “disjointed and evasive,” Anthony, 247 Or. App. at 585, that

could, if anything, undermine the credibility of his recantation.

The state court’s reliance on Smith’s lack of credibility as a live witness was

contrary to Chambers, which makes clear that it is the jury’s role to evaluate the

credibility of witnesses. 410 U.S. at 301. Chambers explained that the hearsay

rule excludes out-of-court statements because “they are usually not made under

oath or other circumstances that impress the speaker with the solemnity of his

statements; the declarant’s word is not subject to cross-examination; and he is not

available in order that his demeanor and credibility may be assessed by the jury.”

410 U.S. at 298. But where, as here and as in Chambers, the individual who

allegedly confessed is available as a witness, the individual may be examined

under oath and “his demeanor and responses weighed by the jury.” Id. at 301. See

also Cudjo, 698 F.3d at 763 (“Supreme Court precedent makes clear that questions

6 of credibility are for the jury to decide.”); id. at 768 n.6 (“the Supreme Court

requires credibility questions be left to the jury”).

***

I do not address prejudice in detail because the majority does not reach the

issue. In my view, the question is quite close, given the strength of the

prosecution’s case. But AEDPA deference is inapplicable to the prejudice question

because the state court did not conduct a harmless error analysis. See Cudjo, 698

F.3d at 768. Evidence that a serial killer who was later convicted of other, similar

murders in the same vicinity in the same time frame twice confessed to the

murders at issue here may well have raised a reasonable doubt as to Anthony’s

innocence. On balance, I am inclined to harbor a “grave doubt” as to whether the

exclusion of the evidence was likely to have substantially influenced the jury’s

verdict. Kotteakos v. United States, 328 U.S. 750, 765 (1946); see Brecht v.

Abrahamson, 507 U.S. 619, 623, 637-38 (1993).

7