Alexis Amaya v. Scott Frauenheim ( 2020 )


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  •                                                                               FILED
    NOT FOR PUBLICATION
    AUG 13 2020
    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ALEXIS JOEL AMAYA,                               No.   18-17124
    Petitioner-Appellant,              D.C. No. 4:16-cv-05069-PJH
    v.
    MEMORANDUM*
    SCOTT FRAUENHEIM, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Phyllis J. Hamilton, Chief District Judge, Presiding
    Submitted August 11, 2020**
    San Francisco, California
    Before: HAWKINS and CHRISTEN, Circuit Judges, and BATAILLON,***
    District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 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 Joseph F. Bataillon, United States District Judge for
    the District of Nebraska, sitting by designation.
    Alexis Amaya appeals the district court’s denial of his federal habeas
    petition brought pursuant to 
    28 U.S.C. § 2254
    . Amaya was convicted in state court
    of two counts of sexual penetration of a child aged ten or younger. We have
    jurisdiction under 
    28 U.S.C. § 2253
    (c), and we affirm.
    1. The first question presented by Amaya’s appeal is whether the state court
    unreasonably held that the admission of evidence of Child Sexual Abuse
    Accommodation Syndrome (CSAAS) did not violate his federal due process rights.
    We conclude that it did not. A federal court “shall not” grant a writ of habeas
    corpus to a state prisoner with respect to any claim adjudicated on the merits in
    state court unless the state court’s decision was “contrary to, or involved an
    unreasonable application of, clearly established Federal law, as determined by the
    Supreme Court of the United States” or “resulted in a decision that was based on
    an unreasonable determination of the facts in light of the evidence presented in the
    State court proceeding.” 
    28 U.S.C. § 2254
    (d). This standard of review “demands
    that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti,
    
    537 U.S. 19
    , 24 (2002) (per curiam).
    The Supreme Court “has not yet made a clear ruling that admission of
    irrelevant or overtly prejudicial evidence constitutes a due process violation
    sufficient to warrant issuance of the writ,” and “[a]bsent such ‘clearly established
    2
    Federal law,’ we cannot conclude that the state court’s ruling was an ‘unreasonable
    application.’” Holley v. Yarborough, 
    568 F.3d 1091
    , 1101 (9th Cir. 2009) (quoting
    Carey v. Musladin, 
    549 U.S. 70
    , 77 (2006)). And in Brodit v. Cambra, 
    350 F.3d 985
    , 991 (9th Cir. 2003), a case with similar facts, we affirmed the denial of a
    petition for habeas relief under § 2254 where the defendant argued that CSAAS
    testimony (also given by a witness who had no knowledge of the underlying facts)
    deprived the defendant of due process. See also United States v. Bighead, 
    128 F.3d 1329
     (9th Cir. 1997) (per curiam); United States v. Antone, 
    981 F.2d 1059
     (9th Cir.
    1992) (upholding admissibility of CSAAS evidence for credibility purposes in
    non-habeas proceedings). For the purpose of determining whether introducing
    CSAAS evidence withstands habeas review under § 2254, that is enough.
    Marshall v. Lonberger, 
    459 U.S. 422
    , 438, n.6 (1983) (“[T]he Due Process Clause
    does not permit the federal courts to engage in a finely tuned review of the wisdom
    of state evidentiary rules.”).1
    Here, the trial court instructed the jury with a model instruction to consider
    the testimony of Miriam Wolf, a licensed clinical social worker who testified about
    how children generally afflicted with CSAAS commonly do not report an assault
    1
    Accordingly, Amaya’s argument that admission of CSAAS evidence
    is prejudicial under the standard imposed by Brecht v. Abrahamson, 
    507 U.S. 619
    (1993) fails.
    3
    for a period of time. Wolf also testified she did not interview any witnesses or
    know any facts about the case. The prosecution urged the jury to consider Wolf’s
    testimony when evaluating Doe’s credibility. The trial court instructed the jury not
    to consider the testimony for the purpose of determining whether Amaya molested
    her. See CALCRIM No. 1193.
    Amaya argues that it is reasonably likely the jury used CSAAS evidence as
    circumstantial, and perhaps direct proof of molestation. But we presume the jury
    followed the trial court’s instruction. Richardson v. Marsh, 
    481 U.S. 200
    , 210
    (1987). Further, despite hearing the CSAAS evidence, the jury was deadlocked
    after first receiving and deliberating on the case.
    Amaya also argues that because this case had no contemporaneous witness
    testimony and no physical evidence and therefore boiled down to a he-said, she-
    said credibility determination, evidence of Doe’s credibility would necessarily
    amount to evidence of Amaya’s guilt. We are not persuaded.
    First, this mirrors an argument the Brodit court considered and rejected.
    Brodit, 
    350 F.3d at 994
     (“This case mainly rested, after all, on a swearing contest
    between the child and Petitioner. There was no eyewitness and there was only
    minimal physical evidence of abuse.”). Second, credibility is not the same as
    accuracy. The jury could have accepted the evidence of CSAAS and still made a
    4
    finding that Doe was credible in her testimony that she was a victim of assault, but
    it could have simultaneously found that her descriptions of the victim or the
    manner in which the assault took place were inaccurate based on rebuttal testimony
    from Amaya. And third, Amaya himself introduced the testimony of four brothers,
    three sisters, one sister-in-law, two friends, and his wife to bolster his own
    credibility.
    When asked to determine whether an evidentiary jury instruction runs so
    afoul of due process that federal habeas relief is warranted, “[t]he only question for
    us is whether the ailing instruction by itself so infected the entire trial that the
    resulting conviction violates due process.” Estelle v. McGuire, 
    502 U.S. 62
    , 72
    (1991) (quoting Cupp v. Naughten, 
    414 U.S. 141
    , 147 (1973) (internal quotation
    marks omitted)). Amaya has failed to make this showing.
    2. We next consider Amaya’s argument that the state trial court violated his
    Sixth or Fourteenth Amendment rights by permitting supplemental closing
    arguments after the jury pronounced itself deadlocked. Our analysis is guided by
    similar principles, and we conclude that Amaya has not demonstrated entitlement
    to federal habeas relief on this basis.
    Amaya cites no Supreme Court authority, nor are we aware of any, that finds
    supplemental closing arguments violate a defendant’s Sixth or Fourteenth
    5
    Amendment rights. And we are mindful that we cannot “refine or sharpen a
    general principle of Supreme Court jurisprudence into a specific legal rule that
    [The Supreme] Court has not announced.” Marshall v. Rodgers, 
    569 U.S. 58
    , 64
    (2013). The trial court, in permitting supplemental closing arguments and allowing
    Amaya’s counsel to proceed first, did not depart from California law, which allows
    both practices. See CAL. PENAL CODE § 1094 (permitting discretion to alter order);
    Cal. R. Ct. 2.1036(a) (permitting additional closing arguments); People v. Young,
    
    67 Cal. Rptr. 3d 899
    , 903 (Ct. App.), as modified on denial of reh’g (2007)
    (holding that the trial court was authorized to reopen closing arguments).
    Moreover, a review of the record reveals the trial court made no remarks that
    could be viewed as coercive, nor did the trial court issue any supplemental jury
    instructions at the conclusion of additional closing arguments. Additionally, the
    trial court stated that it was the jury’s indication that additional argument would be
    helpful that prompted the supplemental closing arguments, and that if the jury had
    6
    indicated additional arguments would not be helpful, the trial court would not have
    permitted them.2
    Applying our precedent, we find that the district court correctly denied
    Amaya’s federal habeas petition.
    AFFIRMED.
    2
    Amaya’s brief includes a claim regarding ineffective assistance of
    counsel. We decline to extend the certificate of appealability to include this claim
    because Amaya has not made a “substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). Counsel’s performance does not fall
    below an objectively reasonable standard by failing to make an objection that
    would be futile. See James v. Borg, 
    24 F.3d 20
    , 27 (9th Cir. 1994) (collecting
    cases).
    7