Christian Walker v. Brian Williams , 515 F. App'x 685 ( 2013 )

FILED
NOT FOR PUBLICATION APR 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN WALKER, No. 12-15680
Petitioner - Appellant, D.C. No. 2:08-cv-01551-PMP-
GWF
v.
BRIAN WILLIAMS and ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted April 15, 2013**
San Francisco, California
Before: SCHROEDER, THOMAS and SILVERMAN, Circuit Judges.
Nevada state prisoner Christian Walker appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas petition challenging his jury conviction for second-
*
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).
degree murder with use of a deadly weapon. The district court had jurisdiction
under 28 U.S.C. §§ 1331 and 2254(a), and we have jurisdiction under 28 U.S.C. §§
1291 and 2253(a). Because the parties are familiar with the facts, we do not
recount them here. We affirm.
I
The Nevada Supreme Court did not unreasonably apply clearly established
federal law when it concluded that Walker suffered no prejudice from the jury’s
exposure to inadmissible evidence. 28 U.S.C. § 2254(d) (providing standard). In
order to obtain habeas relief, a state prisoner must show that a trial error “had
substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The jurors’ exposure to the
handwritten notations on the evidence bags did not have a “substantial and
injurious effect” on their verdict. The handwritten notations were acronyms; there
is nothing in the record to indicate that the jurors were able to decipher the
notations or considered them. The notations, even if considered by the jury,
provided only cumulative evidence. The circumstantial evidence against Walker
was overwhelming. In sum, the potential exposure to the jury of the notations did
not have such a “substantial and injurious effect” on the jury’s verdict to warrant
habeas relief. Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000).
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II
Walker claims that the prosecution deliberately elicited testimony from
witnesses about his incarceration status. The Nevada Supreme Court did not
unreasonably apply clearly established federal law or unreasonably determine the
facts when it concluded that Walker suffered no prejudice from the prosecution’s
questioning. In two of the instances of alleged prosecutorial misconduct, the vague
references to Walker’s incarceration were offered spontaneously by the witnesses.
In the other three instances of alleged prosecutorial misconduct, the prosecutors
were simply attempting to establish whether the alibi witnesses had conferred with
Walker to coordinate their accounts. Most importantly, none of the three alibi
witnesses ever actually mentioned Walker’s incarceration. In short, none of the
questions or answers “so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (internal quotation marks and citation omitted).
AFFIRMED.
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