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 2016-07

Edward Ray, Jr. v. Jeffrey Beard , 654 F. App'x 865 ( 2016 )


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  •                                                                   FILED
NOT FOR PUBLICATION
JUL 08 2016
UNITED STATES COURT OF APPEALS                  MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD VINCENT RAY, Jr.,                  No. 14-15607
Petitioner - Appellant,          D.C. No. 4:10-cv-01582-YGR
v.
JEFFREY A. BEARD,
MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted July 6, 2016
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges and GARBIS,*** Senior
District Judge.
Edward Vincent Ray, Jr. appeals from the district court’s denial of his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
Ray contends that the admission of his codefendant’s confession violated the
Confrontation Clause because the confession did not redact all references to Ray.
We review the district court’s denial of habeas relief de novo. Murdaugh v. Ryan,
    724 F.3d 1104
    , 1113 (9th Cir. 2013).
As a preliminary matter, we agree with Ray that his Confrontation Clause
claim is exhausted. Ray does not offer any evidence beyond that contained in the
state court record, and his arguments before the state courts set forth the operative
facts necessary to establish the legal basis of his claim. See Vasquez v. Hillery,
    474 U.S. 254
    , 260 (1986); Davis v. Silva,
    511 F.3d 1005
    , 1009-11 (9th Cir. 2008).
*
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).
***    The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2                                    14-15607
We also agree that the California Court of Appeal’s factual finding
underlying the rejection of the Confrontation Clause claim was unreasonable, see 28
U.S.C. § 2254(d)(2), and that the admission of the improperly redacted confession
constituted an error pursuant to Bruton v. United States,
    391 U.S. 123 
    (1968).
Contrary to the California Court of Appeal’s finding, the confession contained two
direct references to Ray and at least one reference was incriminating. See
    Bruton, 391 U.S. at 130-37
    ; Taylor v. Maddox,
    366 F.3d 992
    , 1001 (9th Cir. 2004)
(applying section 2254(d)(2)).
Nevertheless, we affirm the district court’s denial of relief because the Bruton
error was harmless in light of the strength of the prosecution’s case. See Whelchel
v. Washington,
    232 F.3d 1197
    , 1206 (9th Cir. 2000). Not only was the confession’s
brief reference to Ray cumulative of Larry Carrington’s more incriminating
testimony, but the prosecution also introduced Ray’s self-incriminating statements,
witness testimony connecting Ray directly to eight robberies, and circumstantial
evidence, including surveillance video, connecting Ray to the other robberies. See
Brecht v. Abrahamson,
    507 U.S. 619
    , 637-38 (1993).
We decline to expand the certificate of appealability.
AFFIRMED.
3                                      14-15607