NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANCISCO BELTRAN, No. 09-55922
Petitioner - Appellant, D.C. No. 2:06-cv-00367-VBF-
PLA
v.
DAVID L. RUNNELS, Warden; JEANNE MEMORANDUM*
S. WOODFORD, Director of Corrections,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted January 13, 2011**
Pasadena, California
Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.
Petitioner Francisco Beltran appeals the district court’s order dismissing
with prejudice his 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner
challenges his May 1, 2001, California state jury conviction of first degree murder,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
as affirmed by the California Court of Appeal. He argues that the introduction of
prior inconsistent statements by two witnesses, who at trial recanted and claimed to
have forgotten nearly everything about the murder, violated his rights under the
Confrontation Clause. To grant the petition, we must find that the California Court
of Appeal 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). Because it was not, and because Petitioner failed to
object to the introduction of the prior inconsistent statements at trial, we affirm.
At trial, Petitioner failed to object to the introduction of the prior
inconsistent statements made by Rodriguez or Espinoza. Under California law, a
defendant waives a Confrontation Clause objection to the introduction of evidence
by failing to make the objection at trial. See People v. Burgener, 62 P.3d 1, 28
(Cal. Ct. App. 2003). “Ordinarily, violation of ‘firmly established and regularly
followed’ state rules . . . will be adequate to foreclose review of a federal claim.”
Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S.
341, 348 (1984)). Although there are “exceptional cases in which exorbitant
application of a generally sound rule renders the state ground inadequate” to
prevent federal review, id., Petitioner has not suggested any reason why this is such
a case.
2
Furthermore, even if federal review of this issue were not foreclosed, the
California Court of Appeal decision was not contrary to or an unreasonable
application of Supreme Court precedent. On several occasions the Supreme Court
has upheld the introduction of the prior inconsistent statement of witnesses who
claimed at trial not to remember the relevant events. See, e.g., United States v.
Owens, 484 U.S. 554 (1988); California v. Green, 399 U.S. 149 (1970). In one of
those cases, as in this case, the witness’s lack of memory appeared disingenuous.
Green, 399 U.S. at 151-52 (witness, after making several statements to police
about drug deal, testified at trial that he could not remember relevant events
because he was on LSD at the time of the drug deal). More recently, in Crawford
v. Washington, 541 U.S. 36 (2002), the Supreme Court “reiterate[d] that, when the
declarant appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.” Id. at 60 n.9. The
California Court of Appeal decision was not contrary to, or an unreasonable
application of, these decisions.
AFFIRMED.
3