Marquez Briggs v. Anthony Hedgpeth , 585 F. App'x 454 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARQUEZ BRIGGS, No. 13-15286
Petitioner - Appellant, D.C. No. 4:11-cv-03237-PJH
v.
MEMORANDUM*
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted October 7, 2014**
San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.
Marquez Briggs contends that the trial court violated his Sixth and
Fourteenth Amendment right to confront the victim, John Doe, when it precluded
him from cross-examining Doe about an interview where police mentioned the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
availability of immigration benefits for crime victims. “The Confrontation Clause
of the Sixth Amendment guarantees the right of an accused in a criminal
prosecution to be confronted with the witnesses against him.” Delaware v. Van
Arsdall, 475 U.S. 673, 678 (1986) (internal quotation marks omitted). It is clearly
established law that “[c]onfrontation means more than being allowed to confront
the witness physically . . . a primary interest secured by [the right to confront
adverse witnesses] is the right of cross-examination.” Davis v. Alaska, 415 U.S.
308, 315 (1974) (internal quotation marks omitted). We need not determine
whether the state court unreasonably applied Van Arsdall. Even under de novo
review, and even if we assume that Briggs’s constitutional rights were violated,
any error was harmless because it did not have a substantial and injurious effect.
See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Briggs was able to
extensively cross-examine Doe on the reliability of his testimony and substantial
physical evidence corroborated Doe’s version of events. See Van Arsdall, 475
U.S. at 684 (setting forth harmless error factors for a violation of right to cross-
examine).
Briggs has raised other issues in his opening brief, which we construe as a
motion to expand the certificate of appealability. 9th Cir. R. 22-1(e). We deny the
motion. We will issue a certificate of appealability in a 28 U.S.C. § 2254
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proceeding “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant is entitled to a
certificate of appealability “if jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Wilson v.
Belleque, 554 F.3d 816, 826 (9th Cir. 2009) (internal quotation marks omitted).
Reasonable jurists would not find it debatable that (1) Briggs failed to show a
violation of a constitutional right on his Brady v. Maryland, 373 U.S. 83 (1963)
claim, because Briggs has not shown that any favorable evidence was suppressed;
and (2) the trial court did not violate Briggs’s right to cross-examine the state’s
DNA expert, because Briggs had a full and fair opportunity to challenge the basis
of the expert’s findings and any error was harmless. We also conclude that the
district court did not abuse its discretion in denying Briggs an evidentiary hearing
and discovery on his Brady claim, because his claims are purely speculative. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); Woods v. Sinclair, __ F.3d __,
2014 WL 4179917, *11-13 & n.10 (9th Cir. Aug. 25, 2014) (No. 09-99003).
AFFIRMED.
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