Tommy Lee v. Leland McEwen , 537 F. App'x 688 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY LEE, No. 11-56606
Petitioner - Appellant, D.C. No. 3:10-cv-02032-WQH-
WVG
v.
L. S. MCEWEN, Warden; EDMUND G. MEMORANDUM*
BROWN, Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted August 5, 2013**
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
California state prisoner Tommy Lee appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction on retrial
for second-degree murder. Lee argues that his constitutional right to confront 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).
witnesses against him was violated when the state trial court ruled a witness from
Lee’s original trial unavailable and allowed the witness’s prior testimony to be read
to the jury. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Lee never objected at retrial to the introduction of the prior testimony or
requested further factual findings related to the witness’s unavailability. The
California Court of Appeal relied on California’s contemporaneous objection rule
and held that Lee forfeited his ability to raise the issue on appeal when he failed to
object below. People v. Lee, D052388, 2009 WL 1027572, at *2 (Cal. Ct. App.
Apr. 17, 2009). In the alternative, the court denied Lee’s claim on the merits.
Federal courts “will not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground that is independent of
the federal question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991). Lee’s Confrontation Clause claim is
defaulted pursuant to California’s contemporaneous objection rule, and Lee does
not argue that there was cause for his default or that failure to consider the merits
of his claim will result in a fundamental miscarriage of justice. See High v.
2
Ignacio, 408 F.3d 585, 590 (9th Cir. 2005). Federal habeas review is procedurally
barred.1
AFFIRMED.
1
The fact that the California Court of Appeal addressed the merits of Lee’s
claim in the alternative does not alter this result. “A state court’s application of a
procedural rule is not undermined where, as here, the court simultaneously rejects
the merits of the claim.” Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2005).
3