Eric Anderson v. Clark Ducart , 708 F. App'x 905 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC ZACHARY ANDERSON, No. 15-15471
Petitioner-Appellant, D.C. No. 3:11-cv-02636-JST
v.
MEMORANDUM*
CLARK E. DUCART, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted August 18, 2017
San Francisco, California
Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,** District
Judge.
Eric Anderson appeals a district court order denying his habeas corpus
petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
federal habeas relief may not be granted unless “a state court’s decision on the
merits was ‘contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by’” the Supreme Court, or “was ‘based on
an unreasonable determination of the facts.’” Woods v. Donald, 135 S. Ct. 1372,
1376 (2015) (quoting 28 U.S.C. § 2254(d)). This standard is “intentionally
difficult to meet” and requires that the state court decision be “objectively
unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376(citation and quotation marks omitted). Federal habeas relief is not available
“unless each ground supporting the state court decision is examined and found to
be unreasonable under AEDPA.” Wetzel v. Lambert, 565 U.S. 520, 525 (2012)
(emphasis in original).
Anderson alleges violations of his Sixth Amendment right of confrontation
and his Fourteenth Amendment right to due process because the prosecutor at his
murder trial posed leading questions to a witness who refused to answer and
referenced those questions during closing arguments. The prosecutor’s questions
related to statements that Anderson’s codefendant purportedly made about the
murder. Anderson’s conviction was affirmed on direct appeal. The state appellate
court concluded that the prosecutor’s leading questions were inappropriate, but
held that any error was cured by the trial judge’s instruction to the jury that an
attorney’s statements and questions are not evidence. The court also noted that the
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other evidence of Anderson’s guilt was “more than substantial.”
The state court did not unreasonably apply clearly established law in finding
that jury instructions cured any error created by the prosecutor’s conduct.
Anderson does not cite any Supreme Court decision compelling the conclusion that
the prosecutor’s conduct “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S.
168, 181 (1986); see also Parker v. Matthews, 567 U.S. 37, 48 (2012) (explaining
that the lower court erred in setting aside the state court’s conclusion because “the
Darden standard is a very general one, leaving courts more leeway in reaching
outcomes in case-by-case determinations”) (internal quotation omitted).
Additionally, “[t]he assumption that jurors are able to follow the court’s
instructions fully applies when rights guaranteed by the Confrontation Clause are
at issue.” Tennessee v. Street, 471 U.S. 409, 415 n.6 (1985). The judge at
Anderson’s trial instructed jurors several times that questions posed and arguments
made by attorneys are not evidence. This is not a case where the jury was asked to
“perform the overwhelming task of considering [evidence] in determining the guilt
or innocence” of one defendant and “then of ignoring it in determining the guilt or
innocence of any codefendants.” Bruton v. United States, 391 U.S. 123, 131
(1968).
Moreover, the state appellate and trial courts reasonably determined that the
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jury had substantial other evidence of Anderson’s guilt. At trial, the prosecution
presented eyewitness identification testimony, surveillance footage of Anderson
driving the getaway vehicle just 50 minutes before it fled the murder scene,
physical evidence, and multiple witnesses who had told police that either Anderson
or his codefendant confessed the murder to them. Given the weight of the evidence
against him, Anderson has not shown that any constitutional error that may have
occurred at his trial “had substantial and injurious effect or influence in
determining the jury’s verdict,” or that he suffered “actual prejudice.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted). Accordingly,
any error was harmless.
AFFIRMED.
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