FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONALD DAVIDSON, No. 09-56691
Petitioner - Appellee, D.C. No. 3:06-cv-01326-BEN-
PCL
v.
P.L. VASQUEZ MEMORANDUM *
Respondent - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 11, 2011
Pasadena, California
Before: B. FLETCHER, WARDLAW, and KAVANAUGH,** Circuit Judges.
Donald Davidson was convicted in California Superior Court of committing
a lewd act upon a dependent adult. The victim was a mentally ill woman
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
**
The Honorable Brett M. Kavanaugh, Circuit Judge for the District of
Columbia Circuit, sitting by designation.
temporarily housed in a hospital psychiatric ward where Davidson was working as
a certified nursing assistant. During the trial, the victim testified on direct
examination but became non-responsive before Davidson’s counsel could cross-
examine her. The trial court struck the victim’s testimony and ordered the jury to
disregard it. Davidson moved for a mistrial, arguing that only a mistrial could cure
the Confrontation Clause violation that occurred when the victim testified without
being subject to cross-examination. The trial court denied the motion, ruling that
striking the testimony and instructing the jury to disregard it sufficed to resolve the
problem. Davidson was convicted, and he then appealed. The California Court of
Appeal affirmed, holding that striking the testimony and instructing the jury to
disregard it sufficed to cure the constitutional problem and that a mistrial was not
necessary. The California Supreme Court denied Davidson’s petition for review.
Davidson then filed a federal habeas petition. The district court granted his
habeas petition. The court ruled that, under Bruton v. United States, 391 U.S. 123
(1968), the Sixth Amendment violation was not cured by striking the victim’s
testimony and instructing the jury to disregard it, but rather necessitated a mistrial.
The State of California now appeals. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and our review is de novo. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004). We reverse.
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Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a federal court may grant habeas relief on a claim “adjudicated on the merits” by a
state court only if the state court 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). We conclude that the
California Court of Appeal adjudicated Davidson’s claim on the merits, and that its
decision neither was contrary to nor involved an unreasonable application of
clearly established federal law, as determined by the Supreme Court.
1. The Court of Appeal’s decision was “on the merits” for the purposes of
AEDPA. A state court decides an issue “on the merits” when it resolves that issue
“based on the substance of the claim advanced, rather than on a procedural, or
other, ground.” Lambert, 393 F.3d at 969. In a recent decision issued after the
district court’s ruling in this case, the Supreme Court emphasized: “When a federal
claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). A state court decision that
addresses the substance of a federal claim under state rather than federal law is still
“on the merits.” See Early v. Packer, 537 U.S. 3, 6-8 (2002); Slovik v. Yates, 556
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F.3d 747, 754-55 (9th Cir. 2009) (applying § 2254(d) to a California Court of
Appeal decision that “analyzed [the petitioner’s] claim as an evidentiary issue
governed by state law, rather than a confrontation question governed by the Sixth
Amendment”).
Applying those principles, we conclude that the California Court of Appeal’s
decision in this case was on the merits. The Court of Appeal recognized the Sixth
Amendment violation that occurred when the victim testified at trial but became
unavailable for cross-examination. Davidson argued to the Court of Appeal that,
under Bruton, 391 U.S. 123, a mistrial was required because the jurors could not
heed an instruction to disregard the victim’s testimony. The Court of Appeal held
that striking the witness’s testimony and instructing the jury to disregard it sufficed
to cure the Sixth Amendment violation, and held that a mistrial was not necessary.
Citing various cases, including one that expressly discussed federal constitutional
confrontation rights (Commonwealth v. Kirouac, 542 N.E.2d 270 (Mass. 1989)),
the Court of Appeal explained:
Where a witness fails to testify on cross-examination after
direct examination due to illness or death or other cause not the
fault of the opposing party, it is proper to strike the witness’s
direct testimony. . . .
....
Courts have long recognized that misconduct at trial can be
cured by admonitions and instructions. We presume jurors follow
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a court’s admonitions and instructions. Nothing in the record we
have on appeal suggests the jury ignored the court’s instruction
and based its decision on Melissa’s testimony rather than the other
substantial evidence supporting a finding of guilt.
We believe the court’s decision in this case to strike
Melissa’s testimony and to strongly admonish the jury was a
reasonable response to Melissa’s noncooperation given the other
evidence presented. We do not find any abuse of discretion in the
court’s decision thereafter to deny Davidson’s motion for a
mistrial.
ER 66-68 (internal citations and quotation marks omitted). To be sure, the Court
of Appeal’s decision could have been somewhat more extensive – it did not, for
example, cite Bruton or explicitly discuss the Sixth Amendment in its analysis of
the mistrial issue. But it resolved Davidson’s claim “based on the substance of the
claim advanced, rather than on a procedural, or other, ground” and was therefore
“on the merits.” Lambert, 393 F.3d at 969.
Because the Court of Appeal’s decision was on the merits, AEDPA’s
deferential standard of review applies.
2. The Court of Appeal’s decision was not “contrary to,” nor did it
“involve[] an unreasonable application of,” any “clearly established Federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The AEDPA
standard is “highly deferential” and “demands that state-court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
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(internal quotation marks omitted). In habeas cases governed by AEDPA, “a state
court must apply legal principles established by a Supreme Court decision when
the case falls squarely within those principles, but not in cases where there is a
structural difference between the prior precedent and the case at issue, or when the
prior precedent requires tailoring or modification to apply to the new situation.”
Moses v. Payne, 555 F.3d 742, 753 (9th Cir. 2009) (internal quotation marks
omitted).
Davidson argues that a criminal defendant has a Sixth Amendment right to a
mistrial when the alleged victim testifies on direct examination but becomes
unavailable for cross-examination. No Supreme Court decision has ever held as
much. The general rule, as the California Court of Appeal noted in this case, is
that instructions to the jury can cure problems that arise at trial because of the
erroneous admission of evidence. See Cruz v. New York, 481 U.S. 186, 191
(1987). Bruton held only that an instruction to the jury could not cure the Sixth
Amendment problem that arises when “the powerfully incriminating extrajudicial
statements of a codefendant, who stands accused side-by-side with the defendant,
are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36
(emphasis added). The Supreme Court has never extended Bruton to a case in
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which a victim, rather than a codefendant, offers testimony not subject to cross-
examination.
This court has said that “Bruton applies only where co-defendants are tried
jointly,” United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007), and “Bruton
rests, for good or ill, on the presumed inability of juries to disregard an
incriminatory codefendant’s confession,” Toolate v. Borg, 828 F.2d 571, 574-75
(9th Cir. 1987). Davidson advances a convincing argument for extending the
Bruton principle to this context. But the Supreme Court has not done so. The
California Court of Appeal’s decision did not contravene Bruton and was not
“contrary to,” nor did it “involve[] an unreasonable application of,” any “clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d).
We reverse the judgment of the District Court and remand with instructions
to deny Davidson’s petition for a writ of habeas corpus.
REVERSED AND REMANDED.
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