NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 13 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES VERDEL FARNSWORTH, No. 22-35805

Petitioner-Appellant, D.C. No. 3:20-cv-05067-BHS

v.

MEMORANDUM*

JERI BOE, Clallam Bay Superintendent,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted May 9, 2024** Seattle, Washington

Before: MURGUIA, Chief Judge, and McKEOWN and OWENS, Circuit Judges.

Charles Farnsworth appeals the district court’s order denying his 28 U.S.C.

§ 2254 habeas corpus petition challenging his conviction for first-degree robbery.

Because the parties are familiar with the facts, we do not recount them here. We

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

* 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). affirm.

We review de novo a district court’s denial of a habeas petition. Prescott v.

Santoro, 53 F.4th 470, 477 (9th Cir. 2022). Under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), habeas relief may not be granted unless a state

court’s adjudication of a claim: “(1) resulted in a decision that was contrary to, or

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

determined by the Supreme Court of the United States; or (2) resulted in a decision

that 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).

I. Ineffective Assistance of Counsel

The Washington state courts did not err in denying Farnsworth’s claims of

ineffective assistance of counsel. To obtain relief on an ineffective assistance of

counsel claim, a petitioner must “show both that his counsel provided deficient

assistance and that there was prejudice as a result.” Harrington v. Richter, 562

U.S. 86, 104 (2011).

As an initial matter, there is no clearly established law that Farnsworth can

bring an ineffective assistance claim against standby counsel when Farnsworth was

proceeding pro se. As the Supreme Court stated in Faretta v. California, “a

defendant who elects to represent himself cannot thereafter complain that the

quality of his own defense amounted to a denial of ‘effective assistance of

2 counsel.’” 422 U.S. 806, 834 n.46 (1975). Farnsworth argues his counsel was

standby in name only, as counsel argued motions and cross-examined witnesses.

But even assuming a claim could proceed on those grounds, Farnsworth has not

shown that he suffered any prejudice from standby counsel’s representation.

Therefore, the Washington state courts were reasonable in denying Farnsworth’s

claim against his standby counsel for failing to get certain police reports admitted

for impeachment purposes.

Farnsworth’s second ineffective assistance claim for the failure to obtain

allegedly exculpatory surveillance footage—when he was formally represented by

counsel—also fails. The Commissioner of the Washington Supreme Court

(“Commissioner”) reasonably found no error in counsel’s representation of

Farnsworth because Farnsworth provided nothing other than speculation to assert

that exculpatory evidence existed on the surveillance video. Further, the record

shows that Farnsworth’s counsel had explicitly requested an unedited version of

the footage. Even if counsel failed to secure the footage before it was destroyed,

his actions did not fall outside “the ‘wide range’ of reasonable professional

assistance.” Harrington, 562 U.S. at 104 (quoting Strickland v. Washington, 466

U.S. 668, 698 (1984)).

II. Prosecutorial Misconduct

3 The Washington state courts were also reasonable in denying Farnsworth’s

claims of prosecutorial misconduct. As we have stated, “[a] prosecutor’s actions

constitute misconduct if they ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d 1104, 1113

(9th Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). But

under AEDPA’s deferential review standard, Farnsworth fails to show any

deprivation of due process.

Farnsworth argues that the prosecutor violated the Confrontation Clause of

the Sixth Amendment by concealing the terms of the plea agreement offered to the

prosecution’s star witness and Farnsworth’s accomplice, James McFarland. While

recognizing the Washington Supreme Court’s holding on direct appeal that the

exclusion of the plea agreement was erroneous, the Commissioner held that the

exclusion was not prejudicial. This determination was reasonable. As the

Washington Supreme Court discussed, and as the record reflects, McFarland’s

testimony presented his motive for testifying: in exchange for testifying against

Farnsworth, McFarland would avoid his robbery conviction and resulting life

sentence. Although McFarland did not accurately represent the mechanics of the

plea agreement, his testimony reflected the ultimate benefit he would receive for

testifying and so his motivation to lie was before the jury. Cf. United States v.

Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (holding that under the

4 Confrontation Clause, the defendant must be able to cross examine a witness who

received a plea agreement “to show why the witness might testify falsely in order

to gain the benefit or avoid the detriment” outlined in the plea agreement).

Farnsworth also contends that the prosecutor committed misconduct by

vouching for McFarland’s supposedly false testimony that he was motivated to

testify after he reviewed certain police reports that defense counsel could not find

or identify. But it was not unreasonable for the Commissioner to conclude that the

prosecutor’s statement—“[t]hat’s what happened”—after McFarland’s testimony

was not vouching because the statement did not directly address McFarland's

credibility or veracity. Cf. United States v. Weatherspoon, 410 F.3d 1142, 1146–

48 (9th Cir. 2005) (holding that a prosecutor engaged in vouching when directly

telling the jury whether witnesses were being truthful). As the magistrate judge

pointed out, the statement could not be considered vouching “in light of the

prosecutor’s immediate clarification that she was, in fact, asking McFarland how

he knew that happened.”

Like his ineffective assistance claim, Farnsworth claims that the prosecutor

erred by not requesting and providing the defense with a full copy of the

surveillance video before it was destroyed. As discussed above, the Commissioner

reasonably found no error because Farnsworth provided nothing other than

speculation to assert that exculpatory evidence existed on the surveillance video.

5 Additionally, Farnsworth cannot pursue a claim under Brady v. Maryland, 373

U.S. 83 (1963), because he fails to show that the prosecution ever possessed the

complete surveillance video or knew of any potentially exculpatory evidence in the

video. See Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (“The

government has no obligation to produce information which it does not possess or

of which it is unaware.”).

Finally, Farnsworth argues that the prosecutor violated his Fifth Amendment

right to remain silent by introducing evidence regarding his refusal to provide a

handwriting exemplar. But as our precedent provides, the production of

handwriting exemplars is neither protected by the Fifth Amendment privilege

against self-incrimination nor a critical stage giving rise to the right to counsel.

See McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir. 2010). Therefore,

Farnsworth’s refusal does not implicate his right to remain silent. Thus, the

Commissioner’s rejection of this claim was not contrary to or an unreasonable

application of clearly established law on the Fifth Amendment.

We reject Farnsworth’s additional prosecutorial misconduct claims because

he provides no evidence or case law to challenge the reasonableness of the state

courts’ decisions. Farnsworth fails to show that any of the prosecutor’s actions

“had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993).

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III. Judicial Misconduct

Because the standard of review for a judicial misconduct claim in a habeas

appeal is the same as that for a prosecutorial misconduct claim—and Farnsworth

largely bases his judicial misconduct claims on the same grounds as his

prosecutorial misconduct claims—we conclude that the state courts’ denial of these

claims was also reasonable. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.

1995). Further, we reject Farnsworth’s only other claim that the trial court’s

exclusion of evidence of McFarland’s prior theft conviction raised “a specter of

bias and impropriety.” Farnsworth does not explain how, even if the exclusion was

erroneous, “the state trial judge’s behavior rendered the trial so fundamentally

unfair as to violate due process under the United States Constitution.” Id. at 740

(citations omitted).

IV. Cumulative Error

“[T]he Supreme Court has clearly established that the combined effect of

multiple trial errors may give rise to a due process violation if it renders a trial

fundamentally unfair, even where each error considered individually would not

require reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citations

omitted). However, Farnsworth is unable to demonstrate any errors other than the

trial court’s exclusion of McFarland’s plea agreement. Thus, Farnsworth’s

7 cumulative error claim fails because we are not faced with “the combined effect of

multiple trial errors.” Id.

AFFIRMED.

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