Orlando Burgos v. Raymond Madden ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO S. BURGOS, No. 20-55816
Petitioner-Appellant, D.C. No.
2:17-cv-00179-
v. SVW-SP
RAYMOND MADDEN, Warden,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted June 5, 2023
Pasadena, California
Filed August 25, 2023
Before: MILAN D. SMITH, JR., DAVID F.
HAMILTON, * and DANIEL P. COLLINS Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable David F. Hamilton, United States Circuit Judge for the
U.S. Court of Appeals for the Seventh Circuit, sitting by designation.
2 BURGOS V. MADDEN
SUMMARY **
Habeas Corpus
The panel affirmed the district court’s denial of Orlando
Burgos’s 28 U.S.C. § 2254 habeas corpus petition
challenging his California conviction for making criminal
threats and assault with a deadly weapon.
The victim, Martin Moya Lopez, was not authorized to
reside in the United States at the time of the crimes. Prior to
testifying in Burgos’s trial, Moya received a U-Visa, which
provides immigration benefits for victims of certain crimes
who cooperate with law enforcement. At trial, the court
barred Burgos from cross-examining Moya about his U-Visa
status, which Burgos asserted was relevant to Moya’s
credibility. The California Court of Appeal determined that
the trial court violated the Confrontation Clause by
precluding the cross-examination, but the error was harmless
because the time-lapse between when Moya reported the
crimes and when he applied for the U-Visa rendered any
inference that his account was intended to bolster his
application for temporary residence in the United States
speculative at best.
Under the standard prescribed in Brecht v. Abrahamson,
507 U.S. 619 (1993), which requires a habeas petitioner to
persuade the court that a constitutional error at trial had a
“substantial and injurious effect or influence” on the verdict,
the panel held that Burgos is not entitled to habeas
relief. The panel wrote that nothing in the record indicates
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BURGOS V. MADDEN 3
that Moya had an eye toward immigration benefits when he
made his initial statement implicating Burgos; rather, the
record suggests the opposite. The panel therefore did not
harbor the requisite “grave doubt” that the jury would have
convicted Burgos had it known about Moya’s immigration
status.
COUNSEL
Dale F. Ogden, Jr. (argued) and Michael D. Weinstein,
Assistant Federal Public Defenders; Cuauhtemoc Ortega,
Federal Public Defender; Mara Gonzales-Souto and Justin
Van Ligten, Certified Law Students; Federal Public
Defender’s Office, Los Angeles, California, for Petitioner-
Appellant.
Julie A. Harris (argued), Deputy Attorney General; Kenneth
C. Byrne, Supervising Deputy Attorney General; Susan S.
Pithey, Senior Assistant Attorney General, Lance E.
Winters, Chief Assistant Attorney General; Rob Bonta,
California Attorney General; California Attorney General’s
Office, Los Angeles, California, for Respondent-Appellee.
4 BURGOS V. MADDEN
OPINION
M. SMITH, Circuit Judge:
Orlando Burgos appeals the denial of his 28 U.S.C.
§ 2254 habeas petition. Burgos was convicted in California
state court of making criminal threats and assault with a
deadly weapon. The victim, Martin Moya Lopez, was not
authorized to reside in the United States at the time of the
crimes. Prior to testifying in Burgos’s trial, Moya received
a U-Visa, which provides immigration benefits for victims
of certain crimes who cooperate with law enforcement. At
trial, the court barred Burgos from cross-examining Moya
about his U-Visa status, which Burgos asserted was relevant
to Moya’s credibility. The California Court of Appeal
determined that the trial court erred by precluding the cross-
examination, but the error was harmless because the time-
lapse between when Moya reported the crimes and when he
applied for the U-Visa “render[ed] any inference that his
account was intended to bolster his application for temporary
residence in the United States speculative at best.” Burgos
filed this habeas action in federal district court, and his
petition was denied. Under the lenient standard prescribed
in Brecht v. Abrahamson, 507 U.S. 619 (1993), we hold that
Burgos is not entitled to habeas relief.
BACKGROUND
This case arises from a string of criminal incidents that
occurred in January 2012, only one of which directly
involved the petitioner. 1 In late 2011, Martin Moya Lopez
1
This abbreviated version of the underlying facts is based on the
statement of facts set forth by the California Court of Appeal, which is
BURGOS V. MADDEN 5
and his common-law wife Gloria Abarques allowed a
woman named Maya Hermosillo to live with them in their
home in Panorama City, California. Hermosillo introduced
Moya and Abarques to Edward Zuniga, a local gang member
and Burgos’s eventual co-defendant. Soon thereafter,
Zuniga brought a used car to Moya and Abarques’s home
and tried to sell it to them. They declined, but Zuniga would
not take no for an answer. He told them they owed him $800
for the car and left it in front of their house for over a week.
Then, on the evening of January 6, 2012, Hermosillo,
Zuniga, and a few others robbed Moya and Abarques’s
home. Abarques was home alone during the robbery. When
Moya arrived home later that night, he saw people removing
items from the house, and decided to stay with his uncle for
the night.
The next morning, Moya was kidnapped from his uncle’s
house. Hermosillo and three men took Moya to a garage
where a group of ten people, including Burgos, were waiting.
Burgos forced Moya to the ground, hit him in the head and
back, and threatened him with a gun. At some point, Zuniga
arrived at the garage and told Moya that he now owed him
double for the car and needed to pay within twenty-four
hours. A few days later, Moya went to his uncle to borrow
money to pay Zuniga. While Moya was at his uncle’s house,
Zuniga showed up, demanded payment, and hit Moya across
the face with the flat side of a knife.
On January 9, Abarques reported the entire matter to the
police. On January 23, LAPD Detective Manuel Armijo
interviewed Abarques and Moya about the robbery, Moya’s
presumed correct. See 28 U.S.C. § 2254(e)(1); Vasquez v. Kirkland, 572
F.3d 1029, 1031 n.1 (9th Cir. 2009).
6 BURGOS V. MADDEN
kidnapping, and his subsequent assault by Zuniga. Burgos
and Zuniga were later charged with several crimes related to
the incidents.
Sometime after January 23, 2012, the government placed
an immigration hold on Moya, who was undocumented, and
he voluntarily left the United States for Mexico. On October
18, 2012, Moya was paroled back into the United States and
received U-Visa immigration status, which is available to
victims of certain crimes who help law enforcement. 2 In a
declaration accompanying his application, he stated: “I am
applying for a U-Visa based on the horrific kidnapping,
extortion, and felonious assault I fell victim to on or about
January 7, 2012,” and provided details about the crimes.
At Burgos and Zuniga’s pretrial hearing, defense counsel
argued that they should be permitted to raise Moya’s U-Visa
status for impeachment purposes, asserting its relevance to
Moya’s credibility. The court ruled that the defense could
ask Moya about any inconsistencies between his U-Visa
declaration and his testimony but could not refer to his
immigration status.
At trial, Moya was the only witness to directly implicate
Burgos in the crimes. Moya was subject to cross-
examination regarding his initial statement to Detective
Armijo (though the statements in Moya’s U-Visa declaration
were not introduced). Moya’s testimony was largely
2
A U-Visa is a “nonimmigrant status” that is “is set aside for victims of
certain crimes who have suffered mental or physical abuse and are
helpful to law enforcement or government officials in the investigation
or prosecution of criminal activity.” See USCIS, Victims of Criminal
Activity: U Nonimmigrant Status (2023),
https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-
other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.
BURGOS V. MADDEN 7
consistent with the story he told Detective Armijo, though a
few discrepancies were revealed—namely, the exact date of
the kidnapping, whether he was taken from his uncle’s house
near a park or from the park itself, and whether Burgos was
in the vehicle that took him to the garage. The jury credited
Moya’s testimony, and Burgos was convicted of making
criminal threats pursuant to Cal. Penal Code § 422(a) and
assault with a firearm pursuant to Cal. Penal Code
§ 245(a)(2).
On direct appeal, Burgos argued that the trial court
unconstitutionally prevented him from cross-examining
Moya about his immigration status. The California Court of
Appeal (CCA) concluded that the trial court violated the
Confrontation Clause by restricting cross-examination
because Moya’s U-Visa was “relevant to show motive
and/or bias, and was relevant to his credibility,” but that the
error was harmless beyond a reasonable doubt. The CCA
emphasized that more than eight months had passed between
when Moya reported the crime and when he applied for a U-
Visa, “rendering any inference that his account was intended
to bolster his application for temporary residence in the
United States speculative at best.” The California Supreme
Court denied review.
Burgos filed this habeas action in the Central District of
California, challenging the CCA’s harmless determination.
The district court denied the petition, finding the CCA’s
harmlessness determination was not unreasonable because
“the inference of motive or bias was largely negated by the
fact that Moya reported the crimes eight months prior to
filing a U-Visa application.” We granted a certificate of
appealability.
8 BURGOS V. MADDEN
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. We review a district court’s denial of a 28 U.S.C.
§ 2254 petition de novo. Bolin v. Davis, 13 F.4th 797, 804
(9th Cir. 2021).
Burgos’s habeas claim is subject to both the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), and Brecht v. Abrahamson,
507 U.S. 619 (1993). “[A] federal court must deny relief to
a state habeas petitioner who fails to satisfy either this
Court’s equitable precedents [including Brecht] or AEDPA.
But to grant relief, a court must find that the petitioner has
cleared both tests.” Brown v. Davenport, 142 S. Ct. 1510,
1524 (2022).
Pursuant to AEDPA, a habeas petitioner cannot obtain
relief unless the state court’s decision is (1) “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States”; or (2) “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).
Pursuant to Brecht, we cannot grant relief unless the
constitutional error had a “substantial and injurious effect or
influence” on the verdict. 507 U.S. at 623 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
ANALYSIS
I
The Confrontation Clause protects a defendant’s right to
impeach a witness against him by “cross-examination
directed toward revealing possible biases, prejudices, or
ulterior motives.” Davis v. Alaska, 415 U.S. 308, 316
BURGOS V. MADDEN 9
(1974). Confrontation Clause errors are subject to harmless-
error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986). Once a reviewing court has determined that the
preclusion of cross-examination was constitutional error,
“[t]he correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the
error was harmless beyond a reasonable doubt.” Id.Whether a Confrontation Clause error is harmless “depends
upon a host of factors, . . . includ[ing] the importance of the
witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and . . . the overall strength of the
prosecution’s case.” Id.The parties dispute whether the CCA reasonably applied
Van Arsdall’s harmlessness framework. We need not decide
that question, however, because Burgos has failed to carry
his burden under Brecht. See Davenport, 142 S. Ct. at 1524.
II
Brecht requires a habeas petitioner to persuade the court
that a constitutional error at trial had a “substantial and
injurious effect or influence” on the verdict. 507 U.S. at 623.
An error has such an effect or influence if it leaves the habeas
court in “‘grave doubt’—not absolute certainty—about
whether the trial error affected the verdict’s outcome.”
Davenport, 142 S. Ct. at 1525 (quoting O’Neal v. McAninch,
513 U.S. 432, 435 (1995)); see also Sessoms v. Grounds, 776
F.3d 615, 630 (9th Cir. 2015) (describing the Brecht inquiry
as whether the reviewing court “can fairly determine that
10 BURGOS V. MADDEN
[the constitutional error] did not substantially sway the jury
to convict”).
In this case, the question is whether we harbor “grave
doubt” that the jury would have convicted Burgos were he
permitted to cross-examine Moya about the immigration
benefit he received as a cooperating witness. We have no
such doubt.
Burgos asserts that, if members of the jury heard
testimony about Moya’s U-Visa application, they may have
inferred that Moya was lying or exaggerating his account in
order to get immigration benefits. But as the CCA reasoned,
the time-lapse between Moya’s first report of the crimes and
his U-Visa application significantly undermines this theory.
Moya was locked into his story as of January 2012 when he
made his initial statement to Detective Armijo. Indeed,
Moya was cross-examined at trial with his January 2012
statement, and despite a few discrepancies, the jury found
Moya’s story consistent enough to convict. Accordingly,
Moya’s U-Visa application would be relevant to his
credibility only if the jury believed that Moya was aware of
(and motivated by) the prospect of obtaining U-Visa status
when he made his statement in January 2012.
In our view, nothing in the record indicates that Moya
had an eye toward immigration benefits when he made his
initial statement implicating Burgos. Rather, the record
suggests the opposite. Moya first spoke to Detective Armijo
on January 23, 2012, but did not apply for U-Visa status until
October 18, 2012—almost nine months later. If Moya had
lied or exaggerated his story to qualify for a U-Visa, it seems
unlikely he would have waited so long to file an application.
Indeed, after Moya spoke with Detective Armijo, an
BURGOS V. MADDEN 11
immigration hold was placed on Moya, and he was removed
to Mexico without seeking immigration relief.
Moreover, at Burgos and Zuniga’s preliminary hearing
outside the presence of the jury, the defense was permitted
to ask Moya about his U-Visa, and Moya made several
statements casting doubt on the defense’s theory that he
reported the crimes to obtain immigration benefits. He
explicitly denied knowing that U-Visa status would allow
him to remain in the United States after trial. He stated that
he assumed that after testifying, he would be returned to
Mexico. 3 He also stated that, if his goal was to remain in the
United States lawfully, he would have legally married
Abarques, a US citizen.
In response, Burgos asserts that there are other plausible
explanations for why Moya waited to file his U-Visa
application. Specifically, he notes that Moya left the United
States for Mexico after the incident and may have had
limited access to legal resources while in Mexico. But this
is wholly speculative given the record before us. At bottom,
there is nothing to suggest that Moya was motivated by the
prospect of immigration benefits when he made his initial
statement about the crimes, which the jury found to be
sufficiently consistent with his testimony at trial.
Accordingly, is it not likely that cross-examination about
Moya’s U-Visa would have “substantially sway[ed] the
jury.” Sessoms, 776 F.3d at 630.
3
Moya’s assumption was incorrect—U-Visa recipients are authorized to
remain in the United States for up to four years and may apply for
adjustment of status during that time. See USCIS, Victims of Criminal
Activity: U Nonimmigrant Status (2023),
https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-
other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.
12 BURGOS V. MADDEN
Nevertheless, Burgos argues that we must find prejudice
because Moya’s testimony was essential to the government’s
case. It is true that Moya was the only witness to testify
directly to Burgos’s involvement in the crimes, 4 and there
was no physical evidence implicating Burgos. As the
prosecution stated in closing, “the elephant in the room” was
whether the jury believed Moya.
Indeed, in cases involving restrictions on the cross-
examination of the sole witness in a case, we have
sometimes found prejudice under Brecht. See e.g., Ortiz v.
Yates, 704 F.3d 1026, 1039–40 (9th Cir. 2012) (finding
actual prejudice when defense was prevented from cross-
examining “victim and sole eyewitness . . . [who] provided
the only direct evidence linking [defendant] to her injuries”
about her “potential ulterior motives”); Holley v.
Yarborough, 568 F.3d 1091, 1099–1000 (9th Cir. 2009)
(finding prejudice when defense was not permitted to cross-
examine victim and sole witness about previous statements
assertedly evincing her propensity to exaggerate); see also
Van Arsdall, 475 U.S at 684 (listing “the importance of the
witness’ testimony” and “whether the testimony is
cumulative” as factors relevant to harmlessness). However,
for the reasons explained above, the proffered cross-
examination about Moya’s U-Visa was unlikely to have any
material impact on whether the jury believed his story,
regardless of whether he was the sole witness. While the
importance of Moya’s testimony to the prosecution’s case
weighs in Burgos’s favor, it does not compel a finding of
prejudice in the context of this case.
4
Although Moya was the only witness to testify directly to Burgos’s
involvement, other aspects of his testimony were largely corroborated by
Abarques.
BURGOS V. MADDEN 13
Finally, Burgos points out that, in closing, the
prosecution emphasized that the victims “are receiving no
benefit from telling the[ir] story” and “get nothing in return
for testifying,” which he contends supports a finding of
prejudice. We do not condone the government’s conduct—
this statement, as applied to Moya, is patently false.
However, it is not enough to meet Burgos’s burden under
Brecht when, as discussed above, the chances that the
precluded cross-examination would have undermined
Moya’s credibility are so low. On this record, we do not
harbor “grave doubt” that the jury would have convicted
Burgos had it known about Moya’s immigration status.
Davenport, 142 S. Ct. at 1525.
CONCLUSION
For these reasons, the district court’s decision denying
Burgos’s petition is AFFIRMED. 5
5
Burgos’s Motion to Expand the Record Pursuant to Federal Rule of
Appellate Procedure 10(e)(2), or for Judicial Notice Pursuant to Federal
Rule of Evidence 201(b)(2), Dkt. No. 28, is DENIED as moot. Burgos
requests the court to consider the contents of the declaration attached to
his U-Visa application. The parties dispute whether the cited procedural
rules permit us to consider the document, given that it was not part of the
record before the district court. However, our decision does not rely on
the contents of Moya’s declaration, other than the description contained
in the CCA’s statement of facts, which is presumed correct. See 28
U.S.C. § 2254(e)(1). Therefore, the motion is moot.