Bruce Moeller v. Bill Lockyer , 428 F. App'x 771 ( 2011 )

FILED
NOT FOR PUBLICATION APR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUCE M. MOELLER, ) No. 09-16454
)
Petitioner – Appellant, ) D.C. No. 2:01-cv-02351-FCD-JFM
)
v. ) MEMORANDUM *
)
KAMALA D. HARRIS,** Attorney )
General; SUPERIOR COURT OF )
SAN JOAQUIN COUNTY, )
)
Respondents – Appellees. )
)
)
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., Senior District Judge, Presiding
Argued and Submitted April 12, 2011
San Francisco, California
Before: FERNANDEZ, RAWLINSON, Circuit Judges, and WELLS,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**
Kamala D. Harris is substituted for her predecessor, Bill Lockyer, as
Attorney General. Fed. R. App. P. 43(c)(2).
***
The Honorable Lesley Wells, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
Bruce Moeller appeals the district court’s denial of his petition for habeas
corpus relief. See 28 U.S.C. § 2254. We affirm.
It is important to note that, as relevant here, we may not order issuance of a
writ of habeas corpus unless the state courts’ adjudication “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.” 28 U.S.C.
§ 2254(d)(1); see also Lockyer v. Andrade, 538 U.S. 63, 70–71, 123 S. Ct. 1166,
1172, 155 L. Ed. 2d 144 (2003). The “‘clearly established’ phrase ‘refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time
of the relevant state-court decision.’” Id. at 71, 123 S. Ct. at 1172. And to be an
unreasonable application, “[t]he state court’s application of clearly established law
must be objectively unreasonable.” Id. at 75, 123 S. Ct. at 1174.
(1) Moeller first contends that his clearly established right to the
assistance of counsel1 was violated when the state trial court conducted an in
camera proceeding as to a major portion of the hearing to suppress evidence on the
basis that a search pursuant to a warrant was improper.2 We disagree. Moeller’s
1
U.S. Const. amend. VI.
2
U.S. Const. amend. IV.
2
counsel was excluded from the in camera portion of the hearing.3 That approach
was followed for the purpose of implementing the informant’s privilege.
The Supreme Court has stated that in order to implement the informant’s
privilege during suppression hearings, the defendant can be precluded from cross-
examining the informant and, for that matter, from cross-examining officers
regarding the informant’s identity. McCray v. Illinois, 386 U.S. 300, 313–14, 87
S. Ct. 1056, 1064, 18 L. Ed. 2d 62 (1967); see also United States v. Anderson, 509
F.2d 724, 730 (9th Cir. 1975). Moreover, the Court has indicated that the
informant’s privilege also extends to the contents of his disclosures if those would
disclose his identity. See Roviaro v. United States, 353 U.S. 53, 60, 77 S. Ct. 623,
627, 1 L. Ed. 2d 639 (1957); United States v. Napier, 436 F.3d 1133, 1136 (9th
Cir. 2006). In addition, the Court has noted that a suppression hearing is not like a
trial because the latter seeks truth, while the former seeks to avoid the truth.
McCray, 386 U.S. at 307, 87 S. Ct. at 1060.
Nevertheless, Moeller insists that an accused is entitled to counsel at the
critical stages of the proceeding against him. See United States v. Cronic, 466 U.S.
648, 659 & n.25, 104 S. Ct. 2039, 2047 & n.25, 80 L. Ed. 2d 657 (1984). And, as
3
As the parties agree, in general that was conducted pursuant to procedures
approved by the California Supreme Court. See People v. Hobbs, 7 Cal. 4th 948,
971–75, 873 P.2d 1246, 1259–62, 30 Cal. Rptr. 2d 651, 664–67 (1994).
3
we have said, a pretrial motion to suppress is a critical stage. United States v.
Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004).
However, Cronic does not require a different conclusion. First, there can be
little doubt that McCray and Roviaro contemplated that counsel, as well as the
defendant, could be precluded from cross-examining the witnesses, where
necessary, and Cronic did not overrule those cases or the principles on which they
rested. Second, counsel was not precluded from assisting Moeller during the
proceedings; counsel was only excluded from the in camera portion of the hearing;
the state courts reasonably deemed that necessary to protect the privilege. Third,
counsel could (and did) submit questions to the trial court for its use in the in
camera hearing, and counsel was given the portion of the warrant that did not need
to be redacted to protect the informant. Finally, counsel did in fact vigorously
argue Moeller’s position to the trial court.
In short, we do not doubt that there is tension between the concept of the
right to counsel and the concept that there should be an informant’s privilege that
limits the reach of that right. Nonetheless, what is clear is that we cannot say that
the procedure followed by the California courts violated clearly established
Supreme Court law.
(2) Moeller then contends that the state courts violated his clearly
4
established right to due process4 when they used the in camera procedure. Again,
we must disagree. What the Supreme Court has said is that an informant’s identity
need not be revealed at a suppression hearing, and that a failure to reveal it does
not violate due process. See McCray, 386 U.S. at 312–13, 87 S. Ct. at 1063. And,
again, the privilege also covers the contents of the informant’s disclosures, if those
would reveal the informant’s identity. See Roviaro, 353 U.S. at 60, 77 S. Ct. at
627; Napier, 436 F.3d at 1136; Anderson, 509 F.2d at 730. Although the privilege
must sometimes give way at trial, a defendant’s interests are “of a lesser
magnitude” at a suppression hearing. United States v. Raddatz, 447 U.S. 667, 679,
100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424 (1980).
In fine, when all is said and done, the state courts are entitled to a great deal
of leeway in this area,5 and we cannot say that the California courts violated clearly
established Supreme Court law.
AFFIRMED.
4
U.S. Const. amend. XIV, § 1.
5
See Renico v. Lett, ___ U.S. ___, ___, 130 S. Ct. 1855, 1864, 176 L. Ed. 2d
678 (2010) (stating that the more general the standard, the more leeway afforded);
Roviaro, 353 U.S. at 62–63, 77 S. Ct. at 628–29 (stating there is no fixed rule on
disclosure; balancing required).
5