NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHNEL M. BAILEY, No. 08-16055
Petitioner - Appellant, D.C. No. 3:00-CV-01865-MMC
v.
MEMORANDUM*
ANA M. RAMIREZ,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted November 3, 2010
San Francisco, California
Before: ALARCÓN and RYMER, Circuit Judges, and TRAGER, Senior District
Judge.**
Johnel Bailey appeals the district court’s denial of his habeas corpus petition
under 28 U.S.C. § 2254. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
I
Bailey’s Sixth Amendment rights were not violated by the ex parte hearing
at which the court decided whether to detain or release Troy Horton after his arrest
on a bench warrant. The proceeding was not adversarial in nature but instead,
concerned how the court would enforce its orders. Bailey’s rights were not directly
affected. He points to no Supreme Court precedent that would make this a critical
stage of the prosecution at which his lawyer had to be present. Cf. United States v.
Wade, 388 U.S. 218, 236-37 (1967) (post-indictment lineup) constituted a critical
stage); Hamilton v. Alabama, 368 U.S. 52, 53-55 (1961) (arraignment); Estelle v.
Smith, 451 U.S. 454, 470-71 (1987) (competency hearing for adverse child
witness). Consequently, Bailey’s right to counsel was not offended.
II
Under the pre-Crawford law applicable to this case, the prosecutor was
required to demonstrate Horton’s unavailability before introducing his pre-trial,
cross-examined testimony. Ohio v. Roberts, 448 U.S. 56, 65 (1980); California v.
Green, 399 U.S. 149, 165 (1970). This includes “a good-faith effort to obtain
[Horton’s] presence at trial.” Barber v. Page, 390 U.S. 719, 724–25 (1968). The
prosecutor issued a subpoena, had Horton arrested and brought before the court –
which itself took steps to assure that he would appear for trial. When he
nevertheless failed to appear and his preliminary hearing testimony was admitted,
the California Court of Appeal’s determination that Bailey was not denied his right
to confront Horton is neither contrary to, nor an unreasonable application of,
Supreme Court precedent.
III
Bailey was not prejudiced regardless of whether counsel should have
followed-up on Corey Burts. Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984). Burts was not an eye witness, and only knew what Bailey told him about
the incident itself. To the extent Burts might have testified that the victim was a
bully, that evidence would have been cumulative. To the extent Bailey claims that
Burts would have bolstered his theory of “imperfect self-defense,” as a matter of
law that defense was unavailable because Bailey testified that he agreed to fight
Moss, pulled out his gun, and shot Moss without retreating.
IV
As we see no error, there is no cumulative error.
AFFIRMED.