FILED
NOT FOR PUBLICATION MAY 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRETT ANTHONY MARQUIS, No. 10-55303
Petitioner - Appellant, D.C. No. 3:07-cv-00730-W-POR
v.
MEMORANDUM *
VINCENT J. IARIA, Chief Probation
Officer, County of San Diego and
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted May 4, 2011
Pasadena, California
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
Bret Marquis appeals the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition, in which he claims that his Confrontation Clause right was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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violated when the trial court admitted the victim’s preliminary hearing testimony at
trial. Because the California Court of Appeal’s adjudication of this claim was
neither contrary to nor an unreasonable application of Supreme Court precedent,
we affirm. See 28 U.S.C. § 2254(d).
The Sixth Amendment permits the admission of testimonial statements from
an absent witness where the witness is unavailable and the defendant had a prior
opportunity to cross-examine. See Crawford v. Washington, 541 U.S. 36, 59
(2004). At the time of trial in this case, the minor victim, Raymond, was
residing—against his will—in a secure residential treatment facility in Mexico for
teenagers with drug and behavior problems. His mother had forcibly transported
him to the facility as a “last resort,” believing his participation in the program to be
a matter of “life or death.” Raymond’s mother refused to authorize his release
from the facility to allow him to travel to San Diego to testify at trial unless the
trial court or the prosecution could guarantee Raymond’s secure transfer back to
the facility after his trial testimony. In an effort to obtain Raymond’s presence at
trial, the prosecutor served him and his mother with subpoenas issued by the San
Diego County Superior Court and the United States District Court for the Southern
District of California. The prosecutor also researched possible methods of
ensuring Raymond’s secure transportation from the courthouse to the facility, but
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concluded on the advice of county counsel that those methods were possibly illegal
or could otherwise subject the county to liability.
The California Court of Appeal reasonably concluded that despite the
prosecution’s diligent efforts to obtain Raymond’s presence at trial, Raymond was
unavailable. See Barber v. Page, 390 U.S. 719, 724–25 (1968) (holding that a
witness is not unavailable for Confrontation Clause purposes unless the
prosecution makes a “good-faith effort to obtain his presence at trial.”). Although
the prosecution did not move the trial court to hold Raymond or his mother in
contempt for violating the subpoenas, nothing in the applicable Supreme Court
precedent requires this step before a state court may find a witness to be
unavailable—particularly in light of the likely futility of such a motion in this case.
It is highly unlikely that a parent’s refusal to interfere with her child’s critically
necessary in-patient treatment would be deemed “without good cause” and thus,
contumacious. See Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not
require a futile act.”).
Because we cannot say that the California Court of Appeal’s decision
upholding the trial court’s unavailability determination was “so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement,” Marquis is not entitled to
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federal habeas relief. See Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
AFFIRMED.