Eric Clay v. Raymond Madden ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC LAMONT CLAY, No. 20-55525
Petitioner-Appellant, D.C. No.
2:17-cv-03081-MWF-KES
v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted July 17, 2023
Pasadena, California
Before: TASHIMA and FORREST, Circuit Judges, and CARDONE,** District
Judge.
Eric Clay appeals the district court’s denial of his petition for a writ of
habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Reviewing “the denial of a Section 2254 habeas corpus petition de novo,” we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
affirm. Patsalis v. Shinn, 47 F.4th 1092, 1097 (9th Cir. 2022) (citing Martinez v.
Cate, 903 F.3d 982, 991 (9th Cir. 2018)).
1. Clay first argues that the state court’s application of Jackson v. Virginia,
443 U.S. 307 (1979), on direct appeal “involved an unreasonable application of[]
clearly established Federal law.” See 28 U.S.C. § 2254(d)(1). One of the counts
Clay challenges is supported by the victim’s identification and circumstantial
evidence. See United States v. Valencia-Amezcua, 278 F.3d 901, 910 (9th Cir.
2002). The other is supported by modus operandi evidence, linking the attack
against one woman to the attacks against the other three. See Colley v. Sumner,
784 F.2d 984, 990 (9th Cir. 1986). The state court thus reasonably concluded that
sufficient evidence supported the verdict on these counts. See United States v.
Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004); People v. Prince, 156 P.3d
1015, 1073 (Cal. 2007); People v. Allen, 211 Cal. Rptr. 837, 840–41 (Ct. App.
1985).
2. Second, Clay argues that the trial court violated his Confrontation Clause
rights by admitting testimony about a police database search that tied him to the
assaults. On appeal, the state court held he had forfeited this claim under
California’s contemporaneous objection rule. We lack jurisdiction to assess the
state court’s application of its procedural rules, Poland v. Stewart, 169 F.3d 573,
584 (9th Cir. 1999) (collecting cases), and we lack jurisdiction to assess Clay’s
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Confrontation Clause claim because this procedural rule represents an
“independent and adequate state [ ] ground[],” Fauber v. Davis, 43 F.4th 987, 1002
(9th Cir. 2022) (citation omitted).
Furthermore, this is not an “exceptional case[] in which exorbitant
application of a generally sound [state procedural] rule renders the state ground
inadequate” and saves the claim from procedural default. Lee v. Kemna, 534 U.S.
362, 376 (2002) (citing Davis v. Wechsler, 263 U.S. 22, 24 (1923)). Clay did not
“substantially compl[y]” with the contemporaneous objection rule and thereby
preserve his Confrontation Clause claim by raising a hearsay objection. See id. at
382–83; Osborne v. Ohio, 495 U.S. 103, 124–25 (1990). To be sure, an
evidentiary objection can preserve “a claim that merely restates, under alternative
legal principles, a claim otherwise identical to one that was properly preserved.”
People v. Partida, 122 P.3d 765, 769 (Cal. 2005) (quoting People v. Yeoman, 72
P.3d 1166, 1187 (Cal. 2003)). Because hearsay and the Confrontation Clause
entail meaningfully different legal analyses, see Ohio v. Clark, 576 U.S. 237, 250
(2015), Clay’s hearsay objection did not preserve his Confrontation Clause
argument or rescue it from procedural default. See Partida, 122 P.3d at 769.
Clay contends that even if his claim is procedurally defaulted, the default is
excused by cause and prejudice, specifically his trial lawyer’s ineffective
assistance. See Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016). Given the
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brevity of the prosecutor’s comments on the database testimony during closing and
the strength of the other inculpatory evidence at trial, any deficient performance by
failing to object on Confrontation Clause grounds was not prejudicial. See Hein v.
Sullivan, 601 F.3d 897, 917–19 (9th Cir. 2010); United States v. Molina, 934 F.2d
1440, 1448 n.7 (9th Cir. 1991) (citing Weygandt v. Ducharme, 774 F.2d 1491,
1493 (9th Cir. 1985)). Accordingly, there was no ineffective assistance of counsel,
and thus no cause and prejudice to excuse Clay’s procedurally defaulted
Confrontation Clause claim. See Visciotti, 862 F.3d at 769.
3. Third, Clay asserts that the state court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), on direct appeal when it rejected his claim that
it was ineffective assistance not to file a motion to suppress. The state court
reasonably concluded that there was not ineffective assistance because “where [a]
motion would be without merit,” a lawyer does not need to file one to act
competently. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). A lineup is not
unduly suggestive when there are variations in skin tone among people of the same
race. See People v. Shabazz, 22 Cal. Rptr. 3d 472, 478 (Ct. App. 2004), rev’d in
part on other grounds, 130 P.3d 519 (Cal. 2006); People v. Dokins, 194 Cal. Rptr.
3d 626, 642 (Ct. App. 2015), vacated in part on other grounds, 2017 WL 511839(Cal. Ct. App. Feb. 8, 2017). Nor is it unduly suggestive for witnesses to view a
lineup together instead of separately, so long as they do not communicate, as was
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the case here. See United States v. Bowman, 215 F.3d 951, 965–66 (9th Cir. 2000).
No authority supports Clay’s contention that it is unduly suggestive to show a live
lineup on the same day as a photo lineup, and analogous cases suggest the opposite
conclusion. Cf. People v. Ybarra, 83 Cal. Rptr. 3d 340, 352–53 (Ct. App. 2008),
disapproved of on other grounds, People v. Gutierrez, 324 P.3d 245 (Cal. 2014).
Finally, it was not unduly suggestive to instruct Clay to open his eyes during one
of the live lineups. Cf. Torres v. City of Los Angeles, 548 F.3d 1197, 1208–09 (9th
Cir. 2008). The state court thus reasonably concluded that Clay’s lawyers did not
render ineffective assistance by not filing a suppression motion. See Lowry, 21
F.3d at 346.
4. Fourth, Clay argues that the state court unreasonably applied Strickland
on direct appeal when it held that it was not ineffective assistance to fail to
challenge Juror No. 11, who knew one of the State’s witnesses. Because Juror No.
11 said he could remain impartial, the state court reasonably concluded that
keeping him on the jury could have been a strategic choice. See Fields v.
Woodford, 309 F.3d 1095, 1108 (9th Cir. 2002); United States v. Quintero-
Barraza, 78 F.3d 1344, 1349 (9th Cir. 1995). And because the witness largely
repeated what the women testified to, and other evidence supported the conviction,
the state court reasonably concluded that Juror No. 11’s presence did not prejudice
the outcome. See Molina, 934 F.2d at 1448 n.7. Even if the state court reached
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this conclusion without considering evidence that aided Clay’s misidentification
defense, such evidence was not central to this defense, so the court did not rely on
an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2); cf. Yun
Hseng Liao v. Junious, 817 F.3d 678, 693–94 (9th Cir. 2016).
5. Fifth, Clay argues that the state habeas court unreasonably concluded that
his lawyer’s smaller failures, combined with his other two claims of ineffective
assistance discussed previously, cumulatively prejudiced him.
But none of the smaller errors amount to ineffective assistance: Whether to
give an opening statement is a strategic decision. LaGrand v. Stewart, 133 F.3d
1253, 1275 (9th Cir. 1998). As was the choice not to introduce evidence of Clay’s
birthmarks. See Hernandez v. Chappell, 923 F.3d 544, 557 (9th Cir. 2019). Clay’s
lawyer was not so disorganized as to render deficient performance. See Sims v.
Brown, 425 F.3d 560, 586 & n.17 (9th Cir. 2005) (collecting cases). And
testimony from Clay’s barber, evidence of “bandit” cabs, and testimony about
cross-racial identifications all would have been cumulative—so the choice not to
present this evidence was not deficient performance either. See Fairbank v. Ayers,
650 F.3d 1243, 1253 (9th Cir. 2011). Because “no error of constitutional
magnitude occurred, no cumulative prejudice is possible.” Hayes v. Ayers, 632
F.3d 500, 524 (9th Cir. 2011) (citing United States v. Larson, 460 F.3d 1200, 1217
(9th Cir. 2006), overturned in part on other grounds, 495 F.3d 1094 (en banc)).
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6. After his Opening Brief was filed, Clay filed a pro se supplemental brief,
which purports to raise additional claims mentioned in the district court’s
certificate of appealability.1 His counsel requests that the Court consider this pro
se filing. The Court denies counsel’s request.
Even if we were to consider the arguments Clay raises, they would fail on
their merits. He brings two claims of prosecutorial misconduct. His first—that the
prosecutor relied on facts not in evidence—is procedurally defaulted. Apelt v.
Ryan, 878 F.3d 800, 825 (9th Cir. 2017). His second—that the prosecutor
mischaracterized some of the physical evidence—fails because the prosecutor’s
statements were minor and brief, and because his lawyer pointed out the supposed
mischaracterization. Hein, 601 F.3d at 912 (quoting Darden v. Wainwright, 477
U.S. 168, 181 (1986)).
7. Clay also filed a pro se request for an evidentiary hearing regarding these
prosecutorial misconduct claims, and his counsel has asked us to consider this
request as well. The Court denies counsel’s motion. In any event, Clay is not
entitled to an evidentiary hearing because his prosecutorial misconduct claims fail
for reasons clear from the record. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007).
1
To the extent Clay’s supplemental brief raises additional arguments not addressed
by the district court, they are forfeited. See Miles v. Ryan, 713 F.3d 477, 494 n.19
(9th Cir. 2013) (citing Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir. 1998)).
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8. Finally, Clay filed a pro se request to supplement his Reply Brief. The
Court denies his request. Even if we considered his arguments, they would not
change matters: His first ineffective assistance claim fails because his lawyer
emphasized the inconsistencies that Clay says she ignored. His second ineffective
assistance claim fails because even if Clay had a right to a bill of particulars, an
alibi defense would not have changed the outcome at trial—GPS data shows him at
the scene of the assault of the only woman who was sure when she was attacked.
See Strickland, 466 U.S. at 694.
And his prosecutorial misconduct claim fails because it is not apparent from
the record that the prosecutor exaggerated her testimony. Either way, substantial
modus operandi evidence supported the charge, and the prosecutor’s comments
played a minor role. See Hein, 601 F.3d at 912.
9. For the foregoing reasons, Clay’s request for an evidentiary hearing, ECF
No. 57, is DENIED; counsel’s motion to consider Clay’s pro se filings, ECF No.
58, is DENIED; Clay’s request to supplement his Reply Brief, ECF No. 82, is
DENIED; and the district court’s judgment is AFFIRMED.
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