FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROYAL KENNETH HAYES,
Petitioner-Appellant, No. 07-99014
v.
D.C. No.
3:01-cv-03926-MHP
ROBERT L. AYERS, of San Quentin
State Prison, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted
March 11, 2010—San Francisco, California
Filed January 7, 2011
Before: Betty B. Fletcher, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge B. Fletcher
491
496 HAYES v. AYERS
COUNSEL
Eric S. Multhaup, Mill Valley, California, for the appellant.
HAYES v. AYERS 497
Lloyd G. Carter, Deputy Attorney General, Fresno, Califor-
nia, for the appellee.
OPINION
CLIFTON, Circuit Judge:
Royal Kenneth Hayes was convicted and sentenced to
death by a California state court for the 1981 murders of
Lauren de Laet and Donald MacVicar. On appeal from the
district court’s denial of his habeas corpus petition, he pre-
sents eight claims of error, all related to the guilt phase of his
trial. The claims concern (1) the trial court’s denial of his
motion for change of venue based on alleged adverse pretrial
publicity; (2) the admission of hearsay evidence regarding a
firearms conviction of the man who allegedly delivered the
murder weapon to Hayes; (3) the trial court’s refusal to
declare a mistrial following a statement by a witness during
her testimony that she had heard that Hayes had offered
$25,000 to have her killed; (4) the trial court’s refusal to per-
mit Hayes to call the attorney of another witness to testify
about communications he had with his client that allegedly
would have impeached her testimony; (5) the prosecutor’s
alleged failure to correct false testimony by that same witness;
(6) security measures taken during the trial; (7) the eleven
years that passed between Hayes’s conviction and the filing
of his opening brief on direct appeal to the California
Supreme Court; and (8) the alleged cumulative prejudice of
the above errors. We affirm the district court’s denial of all of
his claims.
I. Background
In December of 1981, Donald MacVicar and Lauren de
Laet sought to buy cocaine from Hayes. In the presence of de
Laet and Diane Weller, one of Hayes’s accomplices who later
498 HAYES v. AYERS
testified against him, MacVicar gave Hayes $160,000 in cash
towards a $250,000 payment for cocaine. Hayes was to
deliver the cocaine in a secluded location in Santa Cruz, Cali-
fornia. Weller testified that Hayes told her separately that she
was to accompany him to Santa Cruz to kill MacVicar and de
Laet.
Two days later, on December 29, 1981, Hayes, Weller,
MacVicar, and de Laet drove to Santa Cruz, where they met
Debbie Garcia at a doughnut shop. The group got into Gar-
cia’s car and drove to an isolated area in the woods, near two
shallow holes that Garcia had dug earlier at Hayes’s request.
Garcia, who disavowed any advance knowledge of Hayes’s
plan to kill MacVicar and de Laet, claimed that Hayes told her
the holes would be used to hide packages, as they had used
similar holes in the past.
According to testimony by Weller and Garcia, Hayes then
instructed Weller to wait in the car with MacVicar and de
Laet. He walked into the woods with Garcia, purportedly to
“check out” the exact location where the cocaine would be
exchanged. Garcia returned about ten minutes later to retrieve
MacVicar, whom she led to where Hayes was waiting. Hayes
told Garcia to frisk MacVicar. As MacVicar leaned against a
tree to be searched, Hayes killed him with a single shot to the
back of his head. Garcia then retrieved de Laet from the car,
and Hayes shot her twice in the head, killing her.
Nearly two months later, a mushroom hunter discovered
fragments of what later turned out to be de Laet’s skull, and
law enforcement began to investigate. On March 18, 1982,
Garcia, fearing for her life and for the safety of her family,
informed police about the murders, including the involvement
of Hayes, Weller, and herself. Hayes was arrested and
charged with murder.
After lengthy pretrial proceedings, including an unsuccess-
ful motion by Hayes for a change of venue, Hayes went to
HAYES v. AYERS 499
trial in Santa Cruz County on December 3, 1984. Garcia and
Weller received immunity for testifying against Hayes. The
jury ultimately convicted Hayes of the first-degree murders of
MacVicar and de Laet, and also of false imprisonment, assault
with a deadly weapon, and possession of cocaine based on
separate conduct before his arrest. It found true a multiple-
murder special-circumstance allegation and an allegation that
Hayes had personally used a firearm to commit the murders.
The jury was unable to agree on a penalty for the murder con-
victions.
Hayes again moved for a change of venue, and the case was
transferred to Stanislaus County for retrial of the penalty
phase. On May 29, 1986, a jury returned a penalty verdict of
death, and the court entered judgment on August 8, 1986.
On direct appeal, the California Supreme Court affirmed
the judgment against Hayes in a published decision filed on
December 23, 1999. People v. Hayes, 21 Cal. 4th 1211 (Cal.
1999). While this direct appeal was pending, Hayes filed a
petition for a writ of habeas corpus in the California Supreme
Court, which the court denied on the merits without further
explanation. The United States Supreme Court denied
Hayes’s petition for certiorari. Hayes v. California, 531 U.S.
980 (2000).
Hayes then filed a timely petition for writ of habeas corpus
under 28 U.S.C. § 2254 in the Northern District of California.
The district court granted summary judgment for the respon-
dent on all of the claims in Hayes’s petition and entered judg-
ment denying the petition on June 5, 2007. Hayes timely filed
this appeal.
II. Discussion
Hayes raises eight claims of error related to the guilt phase
of his trial. As Hayes filed his habeas petition in 2001, the
Antiterrorism and Effective Death Penalty Act of 1996
500 HAYES v. AYERS
(AEDPA) governs Hayes’s habeas petition, see Woodford v.
Garceau, 538 U.S. 202, 210 (2003), and we review the denial
of his petition de novo. Tilcock v. Budge, 538 F.3d 1138, 1143
(9th Cir. 2008). Under AEDPA, a petition challenging a state
court conviction will not be granted unless the decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). We mea-
sure each of Hayes’s claims against this standard.
A. Denial of Change of Venue
Hayes first argues that the guilt phase of his trial should
have been moved out of Santa Cruz County because of
adverse pretrial publicity. He contends that the state court’s
denial of his change of venue motion in the face of prejudicial
media coverage denied him due process in contravention of
clearly established Supreme Court precedent.
Hayes initially moved for change of venue on February 25,
1983. He submitted evidence of media coverage of his case
in Santa Cruz County. The Santa Cruz Sentinel ran 37 articles
about the case between February 1982, when the remains of
the victims were first found, and early January 1983, when
Hayes pleaded not guilty. The San Jose Mercury-News pub-
lished 30 articles about the case in that time. Other Northern
California newspapers and television and radio stations also
covered the investigation and eventual criminal proceedings.
The media coverage included descriptions of the victims’
remains as they were found; Hayes’s criminal history in Ore-
gon and Minnesota, including the fact that he had been twice
acquitted of murder (once because he was found not guilty by
reason of insanity); Hayes’s commitment to and escape from
a mental hospital; Garcia and Weller’s descriptions of how
Hayes shot MacVicar and de Laet and removed their heads
and hands; and the fact that Weller passed a polygraph test.
The trial court denied Hayes’s motion without prejudice in
March of 1983, noting that the anticipated delay before his
HAYES v. AYERS 501
trial would diminish the likelihood that he would be unable to
receive a fair trial in Santa Cruz County.
Hayes renewed and supplemented his change-of-venue
motion four times after voir dire began in August of 1984.
Each time, he documented additional press coverage since his
previous filing. The supplementary materials included articles
decrying the cost and inefficiency of the Hayes trial and that
of another murder defendant, David Carpenter (“The Trailside
Killer”), whose trial had recently been moved out of Santa
Cruz County, and coverage of Hayes’s jailhouse marriage to
a former nun. The court finally denied Hayes’s renewed
motion on December 3, 1984, shortly before the prosecution
commenced its case-in-chief.
[1] The Sixth and Fourteenth Amendments “guarantee[ ] to
the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961).
When a trial court is “unable to seat an impartial jury because
of prejudicial pretrial publicity or an inflamed community
atmosphere[,] . . . due process requires that the trial court
grant defendant’s motion for a change of venue.” Harris v.
Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988) (citing Rideau v.
Louisiana, 373 U.S. 723, 726 (1963)).
[2] In this circuit, we have identified “two different types
of prejudice in support of a motion to transfer venue: pre-
sumed or actual.” United States v. Sherwood, 98 F.3d 402,
410 (9th Cir. 1996). Interference with a defendant’s fair-trial
right “is presumed when the record demonstrates that the
community where the trial was held was saturated with preju-
dicial and inflammatory media publicity about the crime.”
Harris, 885 F.2d at 1361. Actual prejudice, on the other hand,
exists when voir dire reveals that the jury pool harbors “actual
partiality or hostility [against the defendant] that [cannot] be
laid aside.” Id. at 1363. The Supreme Court applied this two-
pronged analytical approach in a case it decided at the end of
its last term. See Skilling v. United States, 561 U.S. __ , 130
502 HAYES v. AYERS
S. Ct. 2896, 2907 (2010) (considering, first, whether pretrial
publicity and community hostility established a presumption
of juror prejudice, and then whether actual bias infected the
jury).
Skilling illuminates and synthesizes the earlier Supreme
Court decisions upon which Hayes relies. It makes plain that
neither presumed prejudice nor actual prejudice arising from
news coverage and popular sentiment in Santa Cruz County
entitled Hayes to a change of venue.
1. Presumptive Prejudice
[3] “A presumption of prejudice” because of adverse press
coverage “attends only the extreme case.” Skilling, 130 S. Ct.
at 2915; see also Harris, 885 F.2d at 1361 (“The presumed
prejudice principle is rarely applicable and is reserved for an
extreme situation.” (citing Neb. Press Ass’n v. Stuart, 427
U.S. 539, 554 (1976)) (citation and internal quotation marks
omitted)). The doctrine of presumed prejudice is the product
of three Supreme Court decisions from the 1960’s: Rideau v.
Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532
(1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966). See
Skilling, 130 S. Ct. at 2913-15.
[4] Two of these three precedents, Estes and Sheppard,
have little application here because they concern instances
where the media significantly interfered with the trial itself.
See id. at 2915 n.14 (indicating that reliance on Estes and
Sheppard is “misplaced” where news coverage did not influ-
ence the jury after it was empaneled, because “those cases
involved media interference with courtroom proceedings dur-
ing trial.”). In Sheppard, the denial of due process arose in
significant part from the “carnival atmosphere” that the press
created at trial. See Sheppard, 384 U.S. at 358; see also id. at
355 (“[B]edlam reigned at the courthouse during the trial and
newsmen took over practically the entire courtroom.”). Pre-
trial news coverage alone did not infringe upon Sheppard’s
HAYES v. AYERS 503
due process rights, despite “months [of] virulent publicity.”
Skilling, 130 S. Ct. at 2914 (citing Sheppard, 384 U.S. at 354)
(alternation in original). Similarly, in Estes, “the media’s
overzealous reporting efforts . . . ‘led to considerable disrup-
tion’ and denied the ‘judicial serenity and calm to which [Bil-
lie Sol Estes] was entitled.’ ” Id. (quoting Estes, 381 U.S. at
536) (alteration in original).
[5] In this case, by contrast, all of the news coverage that
Hayes marshaled in support of his change of venue motion
occurred before the jury was empaneled. Hayes did not allege
any significant disruption of his trial proceedings by the
media. He did file a motion to reopen voir dire days after the
jury was empaneled because of two newspaper articles cover-
ing the opening days of the prosecution’s case. But he never
suggested that these two articles—primarily factual accounts
of the trial’s commencement—had any effect on the jury or
the proceedings. They certainly did not approach the level of
disruption that supported a presumption of prejudice in Estes
and Sheppard.
Rideau leaves open the possibility of presumptive prejudice
based exclusively on pretrial publicity, but that case is entirely
distinguishable from what happened here. Wilbert Rideau
robbed a bank in a small Louisiana town, kidnaped three bank
employees, and killed one of them. Rideau, 373 U.S. at 723-
24. Without Rideau’s knowledge or consent, and without
counsel present, police filmed an interrogation of Rideau in
which he confessed. Id. at 724. The filmed confession was
broadcast on television three times, within weeks of Rideau’s
trial, to audiences ranging in size from 24,000 to 53,000 peo-
ple. Id. The parish from which Rideau’s jury was drawn had
a total population of about 150,000 people. Id. Rideau was
convicted after the trial court denied his change-of-venue
motion, but the Supreme Court reversed. The Court concluded
that, “to the tens of thousands of people who saw and heard”
Rideau “personally confessing in detail to the crimes with
which he was later to be charged,” the interrogation “in a very
504 HAYES v. AYERS
real sense was Rideau’s trial—at which he pleaded guilty to
murder.” Id. at 726. Deeming the proceedings that followed
“a hollow formality” under the circumstances, id., the Court
reversed “without pausing to examine a particularized tran-
script of the voir dire examination of the members of the
jury.” Id. at 727.
[6] While the small size of Santa Cruz County (about
190,000 people at the time of Hayes’s motion) weighs in
Hayes’s favor, see Skilling, 130 S. Ct. at 2915, the press cov-
erage at issue in this case did not include “the kind of vivid,
unforgettable information” that viewers of Rideau’s confes-
sion were exposed to. Id. at 2916. Although the stories about
Hayes were unflattering and in some instances included inad-
missible evidence, “they contained no confession or other bla-
tantly prejudicial information of the type readers or viewers
could not reasonably be expected to shut from sight.” Id. at
2916. “No evidence of the smoking-gun variety invited pre-
judgment of his culpability.” Id.
[7] Moreover, the publicity Hayes complains of did not
immediately precede his trial as the television broadcasts did
in Rideau. The Supreme Court has repeatedly recognized that
the passage of significant time between adverse press cover-
age and a defendant’s trial can have “a profound effect on the
community and, more important, on the jury, in softening or
effacing opinion.” Patton v. Yount, 467 U.S. 1025, 1033
(1984) (change of venue not constitutionally required where
“extensive adverse publicity and the community’s sense of
outrage were at their height” four years before the defendant’s
trial); see also Skilling, 130 S. Ct. at 2916 (no presumed prej-
udice where “the decibel level of media attention diminished
somewhat” in the four years between Enron’s bankruptcy and
former executive Jeffrey Skilling’s trial).
Patton v. Yount involved circumstances closer to those in
this case. The publicity and potential for prejudice in that case
were at least as great as they were in this case, yet the
HAYES v. AYERS 505
Supreme Court rejected Yount’s claim that his right to a fair
trial had been violated. Yount was tried and convicted of first
degree murder for killing an 18 year-old female high school
student. That conviction was set aside by the state supreme
court on the ground that he had not been given proper notice
of his right to an attorney under Miranda v. Arizona, 384 U.S.
436 (1966), and his case was remanded for a new trial. Press
coverage reported not only the facts of the crime but also
Yount’s prior confession, his prior plea of temporary insanity,
and his conviction for the very same murder. Id. at 1029. That
coverage was at least as prejudicial as the reports of Hayes’s
previous trials and acquittals that were publicized in this case.
Yet publicity even of an inadmissible prior conviction was
held not to foreclose a fair trial in Yount.
The Court reached that conclusion even while noting that
all but 2 of 163 members of the venire panel for Yount’s trial
who were questioned acknowledged that they had heard about
the case, and that 126 of them (77%) admitted that they would
carry an opinion into the jury box based on pre-existing
knowledge of the case. Id. Hayes has not established that the
publicity preceding his trial had a greater negative impact
than that held in Yount to be insufficient to establish a viola-
tion of due process.
[8] The judge who presided over Hayes’s trial concluded
that he was satisfied with jurors’ “statements regarding either
the limited amount of publicity that they have been exposed
to or the fact that they will disregard it.” As the district court
found, “few who did recall the initial publicity remembered
anything other than nonprejudicial facts . . . and few were
aware of Petitioner’s prior homicide acquittals.” The bulk of
the publicity Hayes points to occurred between February of
1982 and January of 1983, about two years before Hayes’s
jury was selected in late 1984. That period of time was not as
long as the four-year periods that passed in both Skilling and
Yount, but the two years was apparently long enough for the
impact of the initial press coverage to dissipate.
506 HAYES v. AYERS
The trial judge based his preliminary denial of Hayes’s
change-of-venue motion on his perception that the consider-
able delay before Hayes’s trial would allow time for commu-
nity sentiment to cool to the point that a fair trial would be
possible. “When pretrial publicity is at issue, ‘primary reli-
ance on the judgment of the trial court makes [especially]
good sense’ because the judge ‘sits in the locale where the
publicity is said to have had its effect’ and may base her eval-
uation on her ‘own perception of the depth and extent of news
stories that might influence a juror.’ ” Skilling, 130 S. Ct. at
2918 (quoting Mu’Min v. Virginia, 500 U.S. 415, 427 (1991))
(alternation in original).
[9] The press coverage in this case cannot be characterized
as a “ ‘barrage of inflammatory publicity immediately prior to
trial,’ amounting to a ‘huge . . . wave of public passion’ ”
against Hayes. Patton, 467 U.S. at 1033 (quoting Murphy v.
Florida, 421 U.S. 794, 798 (1975) and Irvin, 366 U.S. at 728).
The pretrial media attention alone cannot justify a presump-
tion of prejudice in this case.
2. Actual Prejudice
[10] Where circumstances are not so extreme as to warrant
a presumption of prejudice, we must still consider whether
publicity and community outrage resulted in a jury that was
actually prejudiced against the defendant. This inquiry
focuses on the nature and extent of the voir dire examination
and prospective jurors’ responses to it. See Skilling, 130 S. Ct.
at 2917-23. Our task is to “determine if the jurors demon-
strated actual partiality or hostility [toward the defendant] that
could not be laid aside.” Harris, 885 F.2d at 1363.
[11] Voir dire examination in this case was extensive,
occurring over a period of more than two months and filling
over 5000 pages of reporter’s transcripts. It revealed no bias
even approaching a level that would require a change of
venue under the Supreme Court’s decisions. By Hayes’s own
HAYES v. AYERS 507
calculation, 35 of 277 prospective jurors (13%) were excused
because of their knowledge of pretrial publicity. In Murphy v.
Florida, however, the excusal of 20 of 78 veniremen (26%)
for having prejudged the defendant’s guilt—a clearer demon-
stration of partiality than mere knowledge of publicity—did
not “suggest[ ] a community with sentiment so poisoned
against petitioner as to impeach the indifference of jurors who
displayed no animus of their own.” 421 U.S. 794, 803 (1975).
By Hayes’s count, 42 of 78 ultimately “qualified” jurors
had some degree of familiarity with the pretrial press cover-
age. But “[p]rominence does not necessarily produce preju-
dice, and juror impartiality . . . does not require ignorance.”
Skilling, 130 S. Ct. at 2914-15 (citing Irvin, 366 U.S. at 722).
Our review of the voir dire record confirms the California
Supreme Court’s impression that
[f]ew prospective jurors who did recall the initial
publicity remembered anything other than the fact
that the bodies had been found on the campus of the
university. Few were aware from media reports of
the potentially prejudicial and inadmissible evidence
regarding appellant’s acquittal of the prior Minne-
sota murder charge or of the not guilty by reason of
insanity verdict in the prior Oregon prosecution.
Hayes, 21 Cal. 4th at 1251.
Even where a prospective juror displays some prior knowl-
edge of the facts and issues involved in a case, it is his ability
to “lay aside his impression or opinion and render a verdict
based on the evidence presented in court” that is crucial. Irvin,
366 U.S. at 723. We may give “little weight,” id. at 728, to
a prospective juror’s assurances of impartiality “where the
general atmosphere in the community or courtroom is suffi-
ciently inflammatory.” Murphy, 421 U.S. at 802. But, as
explained above, the circumstances surrounding Hayes’s trial
were “not at all of that variety.” Id. Voir dire confirmed that
508 HAYES v. AYERS
the “largely factual” news coverage in this case was mostly
forgotten, or disregarded, by the time Hayes’s jury was
selected. See id.
This case is “worlds apart” from Irvin, where actual preju-
dice mandated a change of venue. See Skilling, 130 S. Ct. at
2921. The “barrage” of publicity “unleashed against [the
defendant]” in Irvin was described in Skilling as having
included “reports of his confessions to the slayings and rob-
beries . . . delivered regularly to 95% of the dwellings in the
county where the trial occurred, which had a population of
only 30,000.” Id. at 2921-22 (internal quotation marks omit-
ted). In Irvin:
the pattern of deep and bitter prejudice in the com-
munity was clearly reflected in the sum total of the
voir dire: 370 prospective jurors or almost 90% of
those examined on the point . . . entertained some
opinion as to guilt, and 8 out of the 12 jurors thought
Irvin was guilty.
Skilling, 130 S. Ct. at 2922 (quoting Irvin, 366 U.S. at 727)
(internal quotation marks and alterations omitted). There is no
evidence here that any member of the empaneled jury was
influenced by press coverage, let alone convinced by it that
Hayes was guilty.
[12] “Reviewing courts are properly resistant to second-
guessing the trial judge’s estimation of a juror’s impartiality,
for that judge’s appraisal is ordinarily influenced by a host of
factors impossible to capture fully in the record.” Skilling, 130
S. Ct. at 2918. In denying Hayes’s change-of-venue motion,
the trial court said:
Because of the manner in which the jury was
selected, the fact that individual jurors were exam-
ined separately, I feel that a lot of information which
might have poisoned the panel has never developed.
HAYES v. AYERS 509
With regard to each of the jurors that has been
passed for cause by the court, I am convinced that
they are and will be fair jurors and not people who
would decide a case based upon public feeling or
pretrial publicity. Some of them do know something
about the case because of pretrial publicity, but I’m
convinced that their statements regarding either the
limited amount of publicity that they have been
exposed to or the fact that they will disregard it and
it has not in any way caused them to form any opin-
ions is sufficient demonstration of the fact that the
defendant can have a fair trial.
The record gives us no basis to second-guess the trial court’s
better-positioned assessment. Because Hayes suffered no pre-
sumed or actual prejudice compelling a change of venue,
relief on this claim was properly denied.
B. Hearsay Evidence of Larry Dahl’s Firearms
Convictions
Hayes’s next claim challenges the manner in which the
prosecution sought to prove that Larry Dahl, the man who
allegedly delivered the murder weapon to Hayes, was con-
victed of firearms offenses. According to Weller, Hayes
requested a gun and silencer to use in the murders from an
associate in Minnesota, Jim Johnson. Johnson arranged for
Larry Dahl to deliver the weapon from Minnesota to Califor-
nia. After this plot unraveled, Dahl was convicted on federal
charges in Minnesota for his role in transporting the weapon
across state lines.
Hayes argues that the prosecution improperly introduced
hearsay evidence of Dahl’s firearms convictions to bolster
prosecution witness Diane Weller’s credibility and to insinu-
ate Hayes’s guilt. He contends that this deprived him of his
“federal rights of due process and his right of confrontation,”
as purportedly established by the Supreme Court in Bruton v.
510 HAYES v. AYERS
United States, 391 U.S. 123 (1968), and Gray v. Maryland,
523 U.S. 185 (1998).1
According to Hayes, the prosecution attempted to paint
Weller as credible in front of the jury by connecting the fact
that she testified against Dahl in a separate proceeding with
the fact that he was ultimately convicted in that case. The
prosecution elicited the following exchange with Weller on
direct examination:
Q: And you testified against Mr. Dahl in Minne-
sota while he was on charges of numerous
things concerning guns; is that correct?
A: Yes.
Q: And in that testimony in Minnesota, did you tell
the true story there?
A: Yes I did.
...
Q: Are you telling a true story here?
A: Yes I am.
On redirect examination, the prosecution linked Weller’s sup-
posed truth telling in Dahl’s trial to his eventual conviction:
1
Hayes also argues that evidence of Dahl’s firearms convictions some-
how undermined the defense’s theory that Dahl killed MacVicar and de
Laet after driving the weapon from Minnesota to California. We reject this
argument because Dahl’s convictions for possessing and transporting a
firearm did not imply that Dahl delivered the gun to Hayes instead of
using it, as the defense maintained he did, to commit the murders himself.
Dahl’s convictions are equally consistent with the defense’s theory.
HAYES v. AYERS 511
Q: You testified against Mr. Dahl in Federal
Court?
A: Yes I did.
Q: Mr. Dahl is charged with transporting the very
firearms that we are talking about [in this case]
across state lines?
A: That’s right.
Q As well as being an ex-felon in possession of
firearms?
A: Yes.
Q: And you testified at that hearing against Mr.
Dahl?
A: Yes I did.
Q: Mr. Dahl was convicted?
A: Yes.
Mr. Minsloff: Objection. Hearsay.
The Court: Sustained.
[13] Hayes does not clearly explain how these exchanges
violate the Confrontation Clause as interpreted in Bruton and
Gray. Like the California Supreme Court, we “infer that the
confrontation claim is based on the hearsay nature of the evi-
dence that Dahl had been convicted.” Hayes, 21 Cal. 4th at
1269. Bruton and Gray do not, however, stand for the propo-
sition that any hearsay violation violates the Confrontation
Clause. Bruton and Gray bear almost no resemblance to this
512 HAYES v. AYERS
case beyond the incidental detail that hearsay is in some way
involved in both instances.
In Bruton, two codefendants jointly stood trial for armed
robbery. 391 U.S. at 124. The trial court admitted the confes-
sion of one codefendant, Evans, that implicated both Evans
and Bruton. Id. The court instructed the jury not to consider
the confession, which was hearsay inadmissible against Bru-
ton, in determining Bruton’s guilt. Id. at 124-25. The Supreme
Court held that, because Evans did not take the stand and was
not subject to cross-examination by Bruton, the jury’s knowl-
edge of Evans’ confession violated Bruton’s right of confron-
tation, despite the limiting instruction. The Court held that
Bruton presented a “context[ ] in which the risk that the jury
will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored.” Id. at 135. Gray extended Bruton to a codefendant’s
confession, under similar joint-trial circumstances, that was
“redacted . . . by substituting for the defendant’s name in the
confession a blank space or the word ‘deleted.’ ” Gray, 523
U.S. at 188. The Court held that these redactions made no
constitutional difference. Id. at 192.
The hearsay involved in this claim arises in a very different
context. The hearsay statement at issue here is the evidence
of Dahl’s convictions, not a statement by any witness that
Hayes was unable to cross-examine. Bruton’s inability to
cross-examine his codefendant was a necessary premise of the
Court’s holding in that case. See Bruton, 391 U.S. at 128
(“Evans’ confession added substantial, perhaps even critical,
weight to the Government’s case in a form not subject to
cross-examination, since Evans did not take the stand. Peti-
tioner thus was denied his constitutional right of confronta-
tion.” (emphasis added)). Hayes does not identify any witness
he was denied the opportunity to cross-examine, nor explain
what additional cross-examination related to the existence of
Dahl’s firearm convictions might have accomplished.
HAYES v. AYERS 513
Bruton and Gray are further distinguishable because the
trial court here excluded the challenged hearsay, while the
confessions in Bruton and Gray were admitted with instruc-
tions that they be considered only as to one codefendant. See
Gray, 523 U.S. at 189; Bruton, 391 U.S. at 124. A central
problem in those cases was the practical difficulty of consid-
ering evidence for one purpose but ignoring it for another.
Bruton addressed the “great” risk that a jury could not or
would not limit its consideration as instructed under the cir-
cumstances of that case, where the consequences of its failure
to do so would be “vital” for the nonconfessing codefendant.
Bruton, 391 U.S. at 135. Hayes does not identify any similar
risk here. The complete exclusion of the inadmissible hearsay
eased the jurors’ task of ignoring it by allowing them to disre-
gard it entirely. Outside of exceptional circumstances such as
Bruton presented, “juries are presumed to follow their instruc-
tions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987),
including the routine instruction to disregard inadmissible evi-
dence. Hayes gives us no reason to stray from the ordinary
presumption here.
[14] In sum, the confrontation right at stake in Bruton and
Gray is not implicated in this case. Hayes fails to identify a
witness he was unable to cross-examine, let alone say how he
was prejudiced by his inability to cross-examine such a hypo-
thetical witness. The trial court did not admit the challenged
hearsay for any purpose, but rather immediately sustained an
objection to it. The district court properly denied this claim.
C. Hearsay Evidence of a Murder-for-Hire Plot
Hayes takes issue with another hearsay violation. The vio-
lation occurred when Diane Weller volunteered hearsay evi-
dence that Hayes had offered $25,000 in exchange for her
murder. Weller explained, in response to the prosecutor’s
questions, that she had not revealed the murders of MacVicar
and de Laet to law enforcement earlier because she feared
514 HAYES v. AYERS
Hayes. She testified to being threatened before she went to
jail. Asked who had threatened her, Weller responded:
I [received threats] at Jim Johnson’s apartment in
February when Kenny Hayes was there. He threat-
ened to kill me if I ever said anything about what
had happened in California. And then when I was at
my apartment, I believe a day or two after Jim John-
son was arrested, Sondra Johnson said there was a
contract out on me for $25,000 from Kenny Hayes.
Defense counsel immediately lodged a hearsay objection,
which the court sustained. The prosecutor maintained that
Sondra Johnson’s statement about the murder contract was
offered not for the truth of the matter asserted, but to prove
Weller’s reason to fear for her life. The court nonetheless reit-
erated that the objection was sustained and told the jurors that
the statement “should be stricken from [their] minds.”
Hayes immediately argued, and now maintains, that Wel-
ler’s inadmissible reference to the murder-for-hire plot
required a mistrial, though the court sustained an objection to
the statement and instructed the jury to disregard it. The
court’s failure to declare a mistrial, he contends, violated his
right to due process recognized by the Supreme Court in
Estelle v. McGuire, 502 U.S. 62 (1991).
[15] Due process guarantees “the fundamental elements of
fairness in a criminal trial.” McGuire, 502 U.S. at 70 (quoting
Spencer v. Texas, 385 U.S. 554, 563-64 (1967)). The
McGuire Court cautioned, however, that “we ‘have defined
the category of infractions that violate “fundamental fairness”
very narrowly.’ ” Id. at 73 (quoting Dowling v. United States,
493 U.S. 342, 352 (1990)). “Beyond the specific guarantees
enumerated in the Bill of Rights, the Due Process Clause has
limited operation.” Id. (quotation and citation omitted).
[16] Hayes identifies no decision—much less a Supreme
Court decision, as AEDPA requires—in which hearsay
HAYES v. AYERS 515
excluded by the trial court with an instruction to the jury to
disregard it was nonetheless deemed prejudicial enough to
undermine the fundamental fairness of a criminal trial. The
due process claims in McGuire concerned (1) the admission
at trial of nonhearsay evidence related to battered child syn-
drome, and (2) a jury instruction that the defendant main-
tained allowed the jury to consider past acts as evidence of his
propensity to commit the crime charged. In any event,
McGuire held that “neither the introduction of the challenged
evidence, nor the jury instruction as to its use, ‘so infused the
trial with unfairness as to deny due process of law.’ ” Id. at
75 (quoting Lisenba v. California, 314 U.S. 219, 228 (1941)).
McGuire therefore sheds no light on what is required for a
witness’s volunteered and subsequently excluded hearsay
statement to violate due process.
Hayes’s reliance on the Seventh Circuit case of Dudley v.
Duckworth, 854 F.2d 967 (7th Cir. 1988), is misplaced. As an
initial matter, that decision is not federal law “as determined
by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), so it is pertinent to our habeas review only to
the extent it persuasively illuminates Supreme Court prece-
dent. Dudley provides little guidance, because it, like
McGuire, does not involve excluded hearsay. In Dudley, a
witness testified that he had received threatening phone calls.
“[T]he threats admittedly came from an unknown source and
were not linked to [defendants] except by prejudicial innuen-
do.” 854 F.2d at 969. The trial court nevertheless declined to
exclude the evidence of the threats or to declare a mistrial,
decisions that the Seventh Circuit held violated due process.
Id. at 972. In addition to Dudley’s dealing with an entirely dif-
ferent violation—not hearsay, but evidence inadequately con-
nected to the defendant—that case is distinguishable from this
one because the trial court there admitted the problematic evi-
dence instead of excluding it, as the trial court did in Hayes’s
case.
[17] Even if we assume that sufficiently prejudicial hear-
say might violate due process despite an instruction to the jury
516 HAYES v. AYERS
to ignore it, the potential harm to Hayes from Weller’s volun-
teered hearsay does not rise to the level of a due process vio-
lation. Weller gave admissible testimony, in nearly the same
breath as her statement about the alleged murder contract, that
Hayes had threatened to kill her in person. Whatever preju-
dice Hayes’s allegedly offering a contract to do the same
might have added to what the jury already knew was too little
to undermine the trial’s fundamental fairness.
Hayes makes much of Justice Stewart’s observation, in
concurrence in Bruton, that “certain kinds of hearsay . . . are
at once so damaging, so suspect, and yet so difficult to dis-
count, that jurors cannot be trusted to give such evidence the
minimal weight it logically deserves, whatever instructions
the trial judge might give.” Bruton, 391 U.S. at 138 (Stewart,
J., concurring). But, as explained in the discussion of Bruton
above, the Court in that case addressed a specific situation in
which the risk that a jury would disregard its instructions and
the harm to the defendant that would follow were particularly
acute. Hayes has not demonstrated that similar prejudice, or
a similarly high risk of its occurring, existed here.
D. Confrontation of Garcia
Hayes contends that he was denied his right to confront
prosecution witness Debbie Garcia because the trial court pre-
vented him from calling her attorney, Brad Wiles, to testify
about communications between Garcia and Wiles. The court
prevented Wiles from testifying because it concluded that the
attorney-client privilege protected the communications that
the defense wanted Wiles to reveal. Hayes argues that his
inability to put Wiles on the stand denied him a chance to
expose Garcia’s bias and motive to deliver testimony favor-
able to the prosecution, in violation of the Confrontation
Clause.
In direct examination of Garcia, the prosecution drew atten-
tion to the fact that Garcia supposedly did not actively seek
immunity for testifying against Hayes:
HAYES v. AYERS 517
Q: Other than that, insofar as anything that would
happen to you, any way, were there any prom-
ises made by me or anyone associated with law
enforcement other than protection?
A: No.
Q: Made to you?
A: No.
Q: At what point did you receive immunity in this
case?
A: Before the preliminary hearing, I believe in
1982.
Q: Did you want it?
A: No.
Q: Who suggested it?
A: I believe you [i.e., the prosecutor] did.
Q: Did I tell you I wouldn’t let you testify without
it?
A: I don’t remember. I don’t recall.
Q: Do you recall whether or not it came from you
or anyone hired by you, associated with you in
any way, to ask for any kind of a deal, bargain,
benefit, anything other than protection?
A: No.
518 HAYES v. AYERS
On cross-examination, the defense tried to rebut the notion
that Garcia had not affirmatively instructed her attorney,
Wiles, to seek immunity on behalf:
Q: Shortly after March 10th, you engaged the ser-
vices of an attorney; correct?
A: After March 10th?
Q: First day you spoke with authorities.
A: No, huh-uh. No, it was a long time after that I
talked to a high school friend who is an attor-
ney.
Q: You engaged the services of Brad Wiles; cor-
rect?
A: Just before the preliminary I believe, yes.
Q: You engaged his services within weeks of your
first statement to the police in March of 1982;
correct?
A: Not as far as I recall.
Q: Did Mr. Wiles tell you that you had had some
criminal liability with respect to this incident?
A: No.
Q: Did he tell you that you were liable to be prose-
cuted for murder?
A: No.
Q: Did he tell you that you needed immunity from
prosecution?
HAYES v. AYERS 519
A: No.
Q: Did he tell you that you could conceivably be
looking at the gas chamber?
A: No.
Q: Did you tell him or agree with him that you
needed immunity?
A: No.
Q: Did you ask him to negotiate with the District
Attorney’s Office here in Santa Cruz for a grant
of immunity?
A: No. It was after the District Attorney had talked
about it. I didn’t even—I didn’t even know
what it was. So I contacted him to find out
exactly what it was and why they—you know,
they suggested it. So why it was needed, so I
could understand.
Q: And this is a couple of months after March of
1982, when you first go to the police; that is
what you’re telling me?
A: I thought it was a lot later than that, but I
thought it was just before the preliminary, but
I could be mistaken.
Q: The preliminary hearing was in November of
1982; correct?
A: That’s correct.
Q: And you didn’t instruct Mr. Wiles to negotiate
with the local District Attorney’s Office to
520 HAYES v. AYERS
insure that you get immunity in this case; is that
what you’re telling me?
A: I did not, that’s correct.
The defense sought to call Wiles to testify and contradict
Garcia’s testimony about the advice he had given her and
whether she had instructed him to seek immunity. The
defense had some reason to suspect that Wiles might tell a
different story than Garcia. Not knowing that the law firm of
Biggam, Christensen & Minsloff represented Hayes, Wiles
had contacted Lawrence Biggam to seek advice about repre-
senting Garcia. Biggam allegedly told Wiles to get Garcia
immunity. Later, Wiles spoke to Jon Minsloff (Hayes’s trial
counsel) on the phone. He allegedly revealed that: Garcia had
contacted him for advice within days of first speaking to the
police; he advised Garcia that she could be prosecuted for first
degree murder, faced the gas chamber, and needed immunity;
Garcia agreed and told Wiles to get her immunity; and he
negotiated with the prosecutor for immunity, which she
agreed to grant months before it was officially given by court
order at the preliminary hearing.
The trial court quashed the defense’s subpoena of Wiles,
concluding that Garcia had not waived attorney-client privi-
lege as to the communications about which the defense sought
to question Wiles.
As a federal court reviewing the denial of a habeas petition,
our concern is whether the trial court’s privilege ruling,
regardless of its correctness under state law, infringed
Hayes’s constitutional right to confront Garcia. See McGuire,
502 U.S. at 67-68 (“[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is lim-
ited to deciding whether a conviction violated the Constitu-
tion, laws or treaties of the United States.”).
HAYES v. AYERS 521
[18] The Supreme Court has held that, under certain cir-
cumstances, otherwise permissible exclusions of evidence
from a criminal trial can deny a defendant’s right under the
Confrontation Clause to cross-examine witnesses against him.
See, e.g., Davis v. Alaska, 415 U.S. 308 (1974) (state law
making records of juvenile offense inadmissible unconstitu-
tionally limited the scope of defendant’s cross-examination of
an adverse witness for bias); Douglas v. Alabama, 380 U.S.
415 (1965) (witness’s invocation of the Fifth Amendment
privilege against self-incrimination denied the defendant an
opportunity for effective cross-examination). Adequate cross-
examination entails not only the right “to ask [the witness]
whether he was biased,” but also the right “to make a record
from which to argue why [the witness] might have been
biased or otherwise lacked that degree of impartiality
expected of a witness at trial.” Davis, 415 U.S. at 318. Hayes
contends that Wiles’s testimony was necessary to establish a
basis for impeaching Garcia on the ground that, contrary to
her testimony, she had actively sought immunity with Wiles’s
help.
[19] A defendant’s right to cross-examine adverse wit-
nesses is not unlimited, though. “[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fen-
sterer, 474 U.S. 15, 20 (1985)). “The Supreme Court consis-
tently has held that a Confrontation Clause violation occurs
when a trial judge prohibits any inquiry into why a witness
may be biased.” United States v. Larson, 495 F.3d 1094, 1108
(9th Cir. 2007) (en banc) (Graber, J., concurring). However,
when some inquiry is permitted, “trial judges retain wide lati-
tude . . . to impose reasonable limits on such cross-
examination.” Van Arsdall, 475 U.S. at 679. “No Confronta-
tion Clause violation occurs ‘as long as the jury receives suffi-
cient information to appraise the biases and motivations of the
witness.’ ” Larson, 495 F.3d at 1109 (Graber, J., concurring,
522 HAYES v. AYERS
but writing for a majority of the court on this point) (quoting
United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995)).
[20] Hayes’s cross-examination of Garcia gave the jury
ample opportunity to appraise her biases and motivations.
Hayes was not barred from asking Garcia whether she
actively sought immunity. He did ask her, and she denied pur-
suing it. Hayes claims entitlement not just to the opportunity
to question Garcia about this potential bias, but to put on an
additional witness to refute Garcia’s responses. This is more
than the Confrontation Clause guarantees in light of the lim-
ited potential value of the proposed testimony from Wiles.
The jury was well aware that Garcia had immunity. Whatever
pro-prosecution bias might flow from that fact alone was
plainly revealed. Even if Wiles’s testimony could have estab-
lished definitively that Garcia sought immunity rather than
having it “forced” upon her, that difference was unlikely to
have changed the jury’s impression of her motivations. The
fact of having immunity at all provided most of the reason
that jurors might view Garcia’s testimony skeptically. In any
case, Wiles’s proposed testimony was relevant only to
impeaching Garcia on the collateral issue of her immunity
deal. It did not relate to her testimony implicating Hayes, and
so it was unlikely to influence the jury’s impression of Gar-
cia’s trustworthiness on the central issue of Hayes’s guilt.
Moreover, the proposed testimony by Wiles would not
have been especially impeaching of Garcia. That Wiles may
have thought that it was important for Garcia to obtain immu-
nity does not mean that Garcia did or that she understood
what Wiles sought to negotiate on her behalf with the prose-
cutor. Garcia’s testimony about when she received immunity
was equivocal and acknowledged that she “could be mistak-
en.” Garcia testified that she “didn’t even know what [immu-
nity] was” before her involvement in the trial. That Wiles had
a different perception of immunity would not have had repre-
sented much of a contradiction.
HAYES v. AYERS 523
A recent en banc decision of our court in a case with analo-
gous facts supports our denial of relief, though the fractured
opinions in that case provided no majority rationale. In Mur-
doch v. Castro, 609 F.3d 983 (9th Cir. 2010) (en banc), the
defendant sought disclosure of a letter a prosecution witness,
Dinardo, sent to his lawyer. The letter allegedly revealed that
Dinardo had been coerced into testifying against the defen-
dant, and that his testimony was false. The defendant sought
the letter as a basis for impeaching Dinardo, but the trial court
denied access on the ground that it was protected by attorney-
client privilege. Id. at 987.
A five-judge plurality of the en banc court held that “the
Supreme Court has not clearly established whether and in
what circumstances the attorney-client privilege must give
way in order to protect a defendant’s Sixth Amendment con-
frontation rights.” Id. at 995-96. The plurality concluded, as
a result, that it could not grant relief under AEDPA. See 28
U.S.C. § 2254(d)(1). Judge Silverman provided the outcome-
determinative sixth vote, but he concurred under different rea-
soning. Judge Silverman reasoned that “[t]here was no con-
flict” between the attorney-client privilege and the
Confrontation Clause, because the defendant’s lawyer did not
move to strike the testimony as to which cross-examination
was limited. 609 F.3d at 996 (Silverman, J., concurring).
[21] The Murdoch opinions suggest the same result we
have independently reached, because the conditions of both
the Murdoch plurality and Judge Silverman’s concurrence are
satisfied in this case: (1) cross-examination was limited
because of attorney-client privilege, and (2) and the defendant
did not seek to strike the testimony he claims was not fully
subject to cross-examination. But neither rationale garnered a
majority of the court in Murdoch. “When a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of [a majority], the holding of the Court may
be viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds.” Marks v.
524 HAYES v. AYERS
United States, 430 U.S. 188, 193 (1977) (quotation and cita-
tion omitted); see also Bradley v. Henry, 518 F.3d 657 (9th
Cir. 2008), amending 510 F.3d 1093 (9th Cir. 2007) (applying
the Marks rule to an en banc decision of the Ninth Circuit).
The Marks rule does not distill a majority from the Murdoch
votes, because the plurality opinion and Judge Silverman’s
concurrence offer independent ways of reaching the same
result. Neither is broader or narrower than the other.2 See
United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140
(2005) (Berzon, J., dissenting in part) (“Marks is workable—
one opinion can meaningfully be regarded as ‘narrower’ than
another—only when one opinion is a logical subset of other,
broader opinions. In essence, the narrowest opinion must
present a common denominator of the Court’s reasoning.”
(quotation and citation omitted)). While the Murdoch court,
were it presented with this case, would reach the same result
we do, the lack of a majority rationale in that case leads us to
rely on our own Confrontation Clause analysis. We conclude
that the district court properly denied this claim.
E. The Prosecution’s Failure to Correct False Testimony
This issue, like the previous one, arises out of Garcia’s
immunity deal and her testimony about it. Hayes argues that
the prosecution did not correct testimony from Garcia about
her immunity that it knew was false. He asserts that Garcia
lied about (1) when she received immunity and (2) whether
she actively sought immunity through her lawyer Wiles, and
that Garcia’s false testimony made her appear more credible
than she really was.
2
The plurality could be considered broader in the sense that it would
deny habeas relief for all confrontation claims based on attorney-client
privilege, without regard to whether a defendant moved to strike the testi-
mony allegedly not subject to full cross-examination. But Judge Silver-
man’s concurrence is broader than the plurality in the sense that it would
deny all confrontation claims in the absence of a motion to strike, not just
those rooted in attorney-client privilege.
HAYES v. AYERS 525
[22] The Supreme Court has long and repeatedly held that
“deliberate deception of a court and jurors by the presentation
of false evidence is incompatible with ‘rudimentary demands
of justice’ ” and thus violates the Due Process Clause of the
Fourteenth Amendment. Giglio v. United States, 405 U.S.
150, 153 (1972). “The same result obtains” when the govern-
ment allows false evidence “to go uncorrected when it
appears” as when it solicits false evidence directly. Napue v.
Illinois, 360 U.S. 264, 269 (1959). Napue’s rule covers false-
hoods that bear only on a witness’s credibility as much as it
covers falsehoods pertinent to a defendant’s guilt. Id. at 269-
70. Hayes’s contentions that Garcia lied about her immunity
agreement, uncorrected by the prosecution, in ways that bol-
stered her credibility are therefore cognizable under Napue.
To succeed on a Napue claim, a defendant “must show that
(1) the testimony (or evidence) [presented by the prosecution]
was actually false, (2) the prosecution knew or should have
known that the testimony was actually false, and (3) that the
false testimony was material.” United States v. Zuno-Arce,
339 F.3d 886, 889 (9th Cir. 2003). False testimony is material
in this context if “there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc).
Hayes fails to meet the first two requirements: he has not
demonstrated that either falsehood he attributes to Garcia was
actually false, or that the prosecution knew as much.
[23] As noted above, Garcia’s testimony about precisely
when she received immunity was mostly equivocal. Garcia’s
understanding that she received immunity “[b]efore the pre-
liminary hearing, I believe in 1982” was consistent with a rea-
sonable assumption that she did not officially have immunity
until the court formally granted it before the preliminary hear-
ing in November of 1982. The defense’s different
understanding—that she effectively had immunity earlier, as
soon as the prosecution agreed to it with her lawyer—is not
definitive, regardless of the prosecution’s later agreement
526 HAYES v. AYERS
with it in a settled statement on appeal. Garcia never claimed
to be certain of when she received immunity. On the contrary,
she said she “thought it was a lot later than [the defense sug-
gested], . . . just before the preliminary,” but that she “could
be mistaken.” The prosecution had no obligation to correct
Garcia’s qualified testimony about her own reasonably held
belief, because it was not actually false.
[24] Neither did Garcia testify falsely about whether she
actively sought immunity through her lawyer Wiles. She was
asked, “Do you recall whether or not it came from you or any-
one hired by you, associated with you in any way, to ask for
any kind of a deal, bargain, benefit, anything other than pro-
tection?” She answered “No.” That answer proved nothing
useful to Hayes because it simply denied recalling who intro-
duced the idea of immunity.
Hayes attempts to contradict Garcia’s denial of seeking
immunity with (1) evidence of conversations between Garcia
and Wiles (as detailed above, in connection with Hayes’s con-
frontation claim) and (2) the fact that Wiles supposedly “ne-
gotiated” for immunity on Garcia’s behalf. On the first point,
the prosecution had no way of knowing of Garcia’s motiva-
tion to seek immunity as revealed in confidential communica-
tions with her lawyer. The government could not, and was not
required to, correct a supposed misstatement that it did not
know was false. See Zuno-Arce, 339 F.3d at 889.
On the second point, the prosecution’s position was that
Wiles did not “negotiate” for immunity before the preliminary
hearing, because the prosecution had already agreed to grant
Garcia immunity—consistent with the theory that it was the
prosecution’s idea—before the first conversation between
Wiles and the prosecution took place. Wiles’s discussion with
the prosecutor was limited to ensuring “that the in-court grant
[of previously-agreed-to immunity] was done in proper form.”
HAYES v. AYERS 527
[25] As no testimony by Garcia was proven to be false, or
false in a way that the prosecution knew or should have
known about, the district court correctly denied this claim.
F. Security Procedures at Trial
Hayes asserts that the trial court’s approval of security
measures that he contends were unnecessary denied him due
process of law and a fair trial by conveying to jurors that he
was unusually dangerous.
The district attorney’s office requested extra security at
Hayes’s trial. The court consulted with court security person-
nel and investigators from the district attorney’s office, who
voiced concerns about the security of witnesses who had been
threatened and about the possibility that Hayes might escape.
Hayes had escaped once before from a mental health institu-
tion in which he was detained. Over Hayes’s objection, the
court permitted screening of everyone who entered the court-
room. Security provisions included use of a hand-held metal
detecting wand, patdown of outer clothing, examination of
bags and purses for weapons, locking the courtroom door, and
posting an extra deputy in the courtroom and two additional
deputies outside the courtroom. Prospective jurors, who only
received identification badges after they were selected, were
screened alongside the general public until a jury was picked.
[26] Holbrook v. Flynn, 475 U.S. 560 (1986), which the
California Supreme Court explicitly considered in affirming
Hayes’s conviction, Hayes, 21 Cal. 4th at 1268-69, establishes
the framework for analyzing whether courtroom security mea-
sures violate a defendant’s right to a fair trial. We must first
“look at the scene presented to jurors and determine whether
what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant’s right to a fair trial.” Hol-
brook, 475 U.S. at 572. In assessing inherent prejudice, the
question is “whether an unacceptable risk is presented of
impermissible factors coming into play” in the jury’s evalua-
528 HAYES v. AYERS
tion of the defendant. Id. at 570 (internal quotation marks
omitted). If security measures are not found to be inherently
prejudicial, a court then considers whether the measures actu-
ally prejudiced members of the jury. Id. at 572. “[I]f the chal-
lenged practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is over.”
Id.
[27] The security screening procedures employed in
Hayes’s trial were not inherently prejudicial. In Holbrook, the
Court concluded that the presence of uniformed security offi-
cers sitting behind the defendants at trial was not inherently
prejudicial. The Court distinguished cases where defendants
were shackled or required to appear in prison garb before the
jury:
The chief feature that distinguishes the use of identi-
fiable security officers from courtroom practices we
might find inherently prejudicial is the wider range
of inferences that a juror might reasonably draw
from the officers’ presence. While shackling and
prison clothes are unmistakable indications of the
need to separate a defendant from the community at
large, the presence of guards at a defendant’s trial
need not be interpreted as a sign that he is particu-
larly dangerous or culpable. Jurors may just as easily
believe that the officers are there to guard against
disruptions emanating from outside the courtroom or
to ensure that tense courtroom exchanges do not
erupt into violence. Indeed, it is entirely possible that
jurors will not infer anything at all from the presence
of the guards. . . . Our society has become inured to
the presence of armed guards in most public places;
they are doubtless taken for granted so long as their
numbers or weaponry do not suggest particular offi-
cial concern or alarm.
475 U.S. at 569. Holbrook directly establishes that the place-
ment of deputies in and outside the courtroom at Hayes’s trial
HAYES v. AYERS 529
was not inherently prejudicial. See also Williams v. Woodford,
384 F.3d 567, 588 (9th Cir. 2004) (denying habeas relief
because placement of additional security personnel in the
courtroom was not inherently prejudicial). Holbrook’s logic
also permits the entry-screening procedures. If uniformed
guards sitting directly behind a defendant “need not be inter-
preted as a sign that he is particularly dangerous or culpable,”
475 U.S. at 569, then the mere screening of all who enter the
courtroom certainly should not be. Indiscriminate screening at
the courtroom door permits an even “wider range of infer-
ences” than strategically placed guards, and it suggests even
more strongly that the security is designed “to guard against
disruptions emanating from outside the courtroom.” Id.
[28] Further, Hayes has not shown that he was actually
prejudiced by the security measures. The California Supreme
Court considered the actual impact of the measures, and found
that
those prospective jurors who were questioned about
[security measures] during voir dire viewed [them]
as a routine procedure like [those] at an airport, a
good idea, indicative that there was something
important or a “big” or “severe” case [being tried].
. . . No prospective juror responses during voir dire
about either their own reactions or those of other
persons whose comments they overheard expressed
concern that defendant might be dangerous.
Hayes, 21 Cal. 4th at 1268. Hayes offers no evidence to con-
tradict the state supreme court’s analysis of whether jurors
were actually influenced by the measures he complains of. Cf.
Williams, 384 F.3d at 588 (holding that “conclusory allega-
tions by counsel that are unsworn and unsupported by any
proof or offer of proof” do not permit a finding of actual prej-
udice.). Relief on this claim was properly denied.
530 HAYES v. AYERS
G. Delay on Direct Appeal
Hayes argues that the nearly eleven-year delay between his
sentencing and the filing of his opening brief on direct appeal
to the California Supreme Court violated his right to due pro-
cess on appeal.
The California Supreme Court received notice of Hayes’s
death sentence and docketed his automatic appeal on August
26, 1986. The court appointed H. Peter Young to represent
Hayes on December 10, 1986. The certified record was filed
on January 13, 1993. After requesting and receiving numerous
extensions of time to file Hayes’s opening brief, Young was
relieved of his appointment on April 4, 1995, without ever fil-
ing an opening brief. Eric S. Multhaup was appointed to rep-
resent Hayes on July 16, 1995. Multhaup filed an opening
brief on July 31, 1997. After discounting the time it took to
complete the record (four years) and the period during which
Multhaup worked on the opening brief (two years), a delay of
five years remains unexplained. Hayes contends that this five-
year delay was excessive and entitles him to a new trial.
[29] We cannot grant relief on this claim because no
“clearly established Federal law, as determined by the
Supreme Court of the United States” recognizes a due process
right to a speedy appeal. 28 U.S.C. § 2254(d)(1). Hayes relies
on Barker v. Wingo, 407 U.S. 514 (1972), but that case estab-
lished only the contours of the right to a speedy trial, not an
appeal.
Hayes cites circuit court decisions that have applied the
analytical framework of Barker to delayed appeals and held
that appellate delay can violate due process or the right to
counsel. See United States v. Davis, 55 F.3d 517 (10th Cir.
1995); Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994);
Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990).3 Lower courts’
3
Coe and Harris are pre-AEDPA decisions and Davis is a direct appeal
from a criminal conviction, so none of the courts that decided these cases
were bound—as we are by AEDPA’s 28 U.S.C. § 2254(d)(1)—to apply
only law clearly established by the Supreme Court.
HAYES v. AYERS 531
extensions of Barker to a new setting, however, cannot be the
basis of habeas relief after AEDPA. “[W]hen a Supreme
Court decision does not ‘squarely address[ ] the issue in th[e]
case’ or establish a legal principle that ‘clearly extend[s]’ to
a new context,” 28 U.S.C. § 2254(d)(1) requires that we deny
relief. Moses v. Payne, 555 F.3d 742 (9th Cir. 2009) (quoting
Wright v. Van Patten, 552 U.S. 120, 125 (2008)) (second,
third, and fourth alteration in original). No Supreme Court
decision “squarely addresses” the right to a speedy appeal, nor
does the right to a speedy trial “clearly extend” to the appel-
late context. The interest in a prompt initial adjudication of a
defendant’s rights, which underlies the right to a speedy trial,
is plainly not the same as the interest in having a trial court
conviction reviewed quickly on appeal.
[30] Moreover, Hayes identifies no prejudice that resulted
from the delay, and we see none. The passage of time did not
adversely affect the California Supreme Court’s review of the
issues Hayes presented, and he does not point to any issue he
was unable to pursue because of the delay. Nor does he
explain why time taken by counsel appointed to represent him
should be attributed to the State, or why it should prevent the
State from holding him responsible for his criminal conduct.
The district court properly denied relief on this claim.
H. Cumulative Error
[31] Citing Brecht v. Abrahamson, 507 U.S. 619, 638
(1993), Hayes argues that his conviction should be vacated
because of the cumulative prejudice of the claimed constitu-
tional errors discussed above, even if the errors were not indi-
vidually prejudicial. See Killian v. Poole, 282 F.3d 1204,
1211 (9th Cir. 2002) (“[E]ven if no single error were prejudi-
cial, where there are several substantial errors, ‘their cumula-
tive effect may nevertheless be so prejudicial as to require
reversal.’ United States v. de Cruz, 82 F.3d 856, 868 (9th Cir.
1996).”). Because we conclude that no error of constitutional
magnitude occurred, no cumulative prejudice is possible. See
532 HAYES v. AYERS
United States v. Larson, 460 F.3d 1200, 1217 (9th Cir. 2006)
(rejecting cumulative error claim where we “discovered no
error” in the defendants’ trial).
AFFIRMED.
B. FLETCHER, Circuit Judge, dissenting.
I respectfully dissent. The guilt phase of Hayes’s trial
should have been transferred out of Santa Cruz County
because the considerable adverse pretrial publicity created a
presumption of prejudice among the jury pool.
In Sheppard v. Maxwell, the Supreme Court held that due
process requires a change of venue or a continuance when the
defendant can show a “reasonable likelihood that prejudicial
news prior to trial will prevent a fair trial.” 384 U.S. 333, 363
(1966). More specifically, because a criminal defendant has
the right to an impartial jury, a court must grant a motion to
change venue “if prejudicial pretrial publicity makes it impos-
sible to seat an impartial jury.” Daniels v. Woodford, 428 F.3d
1181, 1210 (9th Cir. 2005) (citation omitted). In the context
of a petition for a writ of habeas corpus, the federal court
must conduct “an independent review of the record to deter-
mine whether there was such a degree of prejudice against the
petitioner that a fair trial was impossible.” Id. (citation omit-
ted). In the recent case of Skilling v. United States, 130 S. Ct.
2896, 2915-16 (2010), the Supreme Court focused on four
issues in determining whether a presumption of jury prejudice
was appropriate: (1) the size and characteristics of the com-
munity in which the crime occurred; (2) whether the informa-
tion was “blatantly prejudicial information of the type readers
or viewers could not reasonably be expected to shut from
sight”; (3) the time that elapsed between the height of media
coverage and the trial; and (4) jury actions with respect to ear-
lier prosecutions of similar or related crimes. Here, the major-
HAYES v. AYERS 533
ity recognizes that the first factor, or the size of the
community in which the crime took place, weighs in favor of
finding presumed prejudice. Maj. op. at 504.
As to the second factor, the majority characterizes the
information contained in the pretrial publicity as “unflatter-
ing,” but concludes that this was not the type of vivid, unfor-
gettable information that would warrant a change of venue.
The majority mischaracterizes and significantly dilutes the
shocking nature of the information and images to which the
jury pool was exposed prior to the trial. The pretrial coverage
included explicit pictures of the victims’ remains revealing
the condition of the exhumed skulls and that the victims’
heads and hands had been chopped off. These images are well
beyond merely “unflattering,” and constitute the type of
shocking imagery that, once seen, would be impossible to for-
get. Indeed, the transcript of the voir dire reveals that many
of the jurors specifically recalled hearing or reading prior to
trial about the condition of the victims’ remains. If that is not
enough, information was released revealing that Hayes had
been charged with two prior murders in other states. One of
the articles discussing Hayes’s previous murder charges also
described his stay at a mental hospital in Portland, Oregon.
The majority’s suggests that publicity amounting to a pub-
lic confession such as that in Rideau v. Louisiana, 373 U.S.
723 (1963) is the only sort of pretrial publicity that creates
presumed prejudice. Certainly, the interrogation and confes-
sion at issue in Rideau had an undeniable effect on the defen-
dant’s ability to receive a fair trial. See 373 U.S. at 727.
However, the majority’s suggestion is a far too narrow read-
ing of the case. The proper focus of our inquiry is not on
whether the publicity to which the jury was exposed is exactly
the same as that in previous cases, but rather on whether it is
the type that would stick in the minds of community mem-
bers, rendering it impossible to assure an impartial verdict.
See Daniels, 428 F.3d at 1210 (noting that the relevant inquiry
is whether “there was such a degree of prejudice against the
534 HAYES v. AYERS
petitioner that a fair trial was impossible”). Indeed, Skilling
does not limit prejudice from pretrial media exposure to fil-
med confessions, but rather acknowledges that there may be
“other blatantly prejudicial information of the type readers or
viewers could not reasonably be expected to shut from sight”
or that could be “imprinted indelibly in the mind of anyone
who watched it.” Skilling,130 S. Ct. at 2916. Grotesque depic-
tions and descriptions of victim body parts, combined with
stories about the defendant’s criminal history and mental
instability, are precisely the type of information that infiltrates
the minds of community members so that they can no longer
render a truly impartial decision based only on the evidence
presented in the trial itself.1
With respect to factor three (elapsed time), the majority
points out that the bulk of the pretrial publicity in this case
was released only one to two years before voir dire. Notably,
in both Skilling and Patton, cited by the majority to support
its conclusion regarding the passage of time, four years had
passed since the height of the adverse publicity before trial,
or more than twice the amount of time here. 130 S. Ct. at
2916; Patton v. Yount, 467 U.S. 1025, 1032 (1984). The
majority contends that Hayes failed to establish that “the pub-
licity preceding his trial had a greater negative impact than
that . . . in Yount ”. Maj. op. at 505. However, the analysis
ignores the fact that the primary reason that the publicity in
Yount did not amount to a due process violation was because
1
Careful attention should be paid to two disturbing facts. The trial court
granted Hayes’s motion for change of venue for the penalty phase of the
trial, although it denied the motion at the guilt phase. The transcript
reveals that the trial judge admitted that he took cost into consideration in
making his first ruling. Second, he stated on the record his support for a
pending bill that would not allow motions for change of venue to be
granted until after voir dire. The trial judge blatantly and openly consid-
ered costs and other political issues in ruling upon the motion for change
of venue. In the face of overwhelming evidence indicating that the jury
was tainted by previous media exposure, he considered costs to the court
to be more important.
HAYES v. AYERS 535
the passage of time (four years) rebutted “any presumption of
partiality or prejudice.” Yount, 467 U.S. at 1033-35. A review
of Yount makes clear that it was the passage of four years that
blunted the memories of the perspective jurors and minimized
the dangers of prejudicial exposure to pretrial media cover-
age.
By contrast, the transcript of the voir dire here reveals that
the passage of only one or two years was insufficient to erase
the taint that had spread throughout this small community
from the sensational media coverage of the case. In addition,
in arguing the venue issue before the lower court, defense
counsel made the judge aware of the results of an informal
survey taken among the members of the Santa Cruz County
community, which revealed that 71% of the community mem-
bers had read something about the case prior to voir dire. In
other words, despite the passage of time, on the first day of
trial nearly three-fourths of the members of the community
recalled something about the case from previous media expo-
sure. Undoubtedly, an even greater proportion had their mem-
ories of the gruesome details triggered by the testimony and
facts that would be revealed over the course of the trial. These
memories could be nothing short of prejudicial. The trial
judge, however, gave almost no consideration to the telling
results of this survey.
As to the final Skilling factor, we have not been presented
with sufficient information to usefully assess prior jury deci-
sions with respect to similar crimes. It is interesting to note,
however, that, near the time Hayes originally moved for a
change of venue, four other homicide cases were transferred
from Santa Cruz County, this very county, to other counties
based upon the community’s exposure to media coverage.
I respectfully dissent. I would grant Hayes’s habeas petition
on the grounds that the lower court’s failure to grant his
motion for change of venue violated his right to an impartial
jury and to due process of law.