FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA RICHTER, No. 06-15614
Petitioner-Appellant,
v. D.C. No.
CV-01-00643-JKS
KELLY HARRINGTON, Warden,
OPINION
Respondent-Appellee.
On Remand from the United States Supreme Court
Filed July 11, 2011
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
Barry G. Silverman, Kim McLane Wardlaw,
Raymond C. Fisher, Richard A. Paez, Jay S. Bybee,
Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
9269
RICHTER v. HARRINGTON 9271
COUNSEL
Cliff Gardner, Oakland, California, for the petitioner-
appellant.
Harry Joseph Colombo, Deputy Attorney General, John G.
McLean, Supervising Deputy Attorney General, and Mark
Anthony Johnson, Deputy Attorney General, Sacramento,
California, for the respondent-appellee.
OPINION
PER CURIAM:
In a previous en banc opinion, we held that Richter’s trial
counsel provided him constitutionally ineffective assistance
because he failed to consult or call forensic experts to explain
9272 RICHTER v. HARRINGTON
a pool of blood found at the crime scene. See Richter v. Hick-
man, 578 F.3d 944, 968 (9th Cir. 2009) (en banc). The
Supreme Court reversed, holding that the state court reason-
ably denied the claim in a decision entitled to AEDPA defer-
ence. See Harrington v. Richter, 131 S. Ct. 770, 780-81, 788,
791 (2011). The Court didn’t reach Richter’s remaining
claims, but they meet the same fate.
“Federal habeas relief may not be granted for claims sub-
ject to § 2254(d) unless it is shown that the earlier state
court’s decision ‘was contrary to’ federal law then clearly
established in the holdings of this Court, [28 U.S.C.]
§ 2254(d)(1); or that it ‘involved an unreasonable application
of’ such law, § 2254(d)(1); or that it ‘was based on an unrea-
sonable determination of the facts’ in light of the record
before the state court, § 2254(d)(2).” Id. at 785 (internal cita-
tion omitted).
[1] First, Richter argues that his lawyer should have had an
expert testify that the surviving victim (Johnson) was using a
.380 caliber Mac-12 handgun whose modifications made it
prone to jamming. Specifically, he contends that the state
court’s rejection of this ineffective assistance of counsel argu-
ment was an “unreasonable application” of Strickland v.
Washington, 466 U.S. 668, 690 (1984). The defense’s theory
at trial was that Johnson tried to shoot Richter’s confederate,
Branscombe, but the gun jammed when an empty shell failed
to eject. Johnson then allegedly picked up a .22 caliber hand-
gun and accidentally shot the victim, Klein, who eventually
died. As the three-judge panel explained, introducing addi-
tional evidence on this point was unlikely to make a differ-
ence:
Even had the jury heard the proffered expert’s testi-
mony that the Mac-12 could jam, there is no reason-
able probability that the jury would have accepted
appellants’ theory that the Mac-12 did jam in this
case. The proffered expert offers no opinion on the
RICHTER v. HARRINGTON 9273
actual likelihood that such a modification would
cause the weapon to jam. Garbutt, the State’s own
expert, admitted at trial that the modifications to
Johnson’s Mac-12 could possibly cause it to fail to
fire, but found that the weapon successfully fired
each of the three times that he tested it. . . . The total-
ity of the evidence presented at trial weighs strongly
against appellants’ theory that the Mac-12 jammed
and that Branscombe fired at Klein in self-defense.
There is no reasonable probability that the jury
would have changed its verdict had they heard addi-
tional testimony stating that the Mac-12 could possi-
bly malfunction in some manner.
Richter v. Hickman, 521 F.3d 1222, 1230-31 (9th Cir. 2008).
Because the state court could reasonably have come to the
same conclusion, its rejection of Richter’s argument was not
an unreasonable application of Strickland.
[2] Second, Richter argues that his lawyer should have cal-
led lay witnesses to testify that Johnson’s gun safe was
already at his house before the shootings. This would weaken
the theory that Richter and Branscombe entered Johnson’s
house in order to steal the safe, and were therefore guilty of
felony murder. But counsel did call a witness who testified
she had seen the safe in Richter’s house just a few days before
the shootings. Counsel later recalled that he thought the cross-
examination of the other potential witnesses would hurt their
credibility and end up doing more harm than good. The state
court could reasonably have concluded that counsel made a
legitimate tactical decision, that the decision (if wrong)
caused no prejudice and, thus, that the state court’s decision
was not an unreasonable application of Strickland. See Strick-
land, 466 U.S. at 690; cf. Richter, 131 S. Ct. at 792.
[3] Third, Richter claims the trial court violated his Eighth
and Fourteenth Amendment rights by giving an inaccurate
9274 RICHTER v. HARRINGTON
answer to the following request for clarification submitted by
the jury:
If a defendant is found guilty of Robbery & Burglary
in the first degree, it is our understanding that this
necessarily leads to a guilty verdict of murder in the
first degree if a human being is killed during the
commission of the above Robbery and Burglary.
. . . [I]f a defendant is found to have aided & abetted
in the above Robbery/Burglary, is he guilty of all
charges . . . as found for the other defendant.
The trial court answered “yes.” As the three-judge panel
explained, this created a potential problem for Richter:
The trial court’s response to the jury’s request for
clarification could be interpreted as an inaccurate
statement of California law. . . . The most natural
reading of the colloquy is that it correctly states Cali-
fornia’s felony murder rule: when a defendant aids
and abets a robbery, and someone is killed during the
robbery, the defendant is guilty of both robbery and
murder, even if his accomplice does the killing. But
the colloquy goes further. It permits the jury to con-
clude that a defendant who aids and abets a robbery-
murder must be found guilty of robbery and murder
even if he does not begin to aid or abet the robbery
until after the murder has already occurred. This
interpretation of the colloquy [would be] an incorrect
statement of California law.
Richter, 521 F.3d at 1237 (citation omitted). The panel found
that there was very little chance the jury interpreted the collo-
quy incorrectly—and that any error would have been harm-
less:
In phrasing the request for clarification the way they
did, it is unlikely that the jury was attempting to
RICHTER v. HARRINGTON 9275
determine whether someone who began to aid and
abet a robbery only after a murder had been commit-
ted must be found guilty of the murder. . . . Even if
the trial court did commit constitutional error, the
error was harmless. For the error to have an injurious
effect or influence in determining the jury’s verdict,
the jury must have believed . . . that (1) Richter had
no intention of robbing Johnson (or of helping Bran-
scombe rob Johnson) when he and Branscombe
drove to Johnson’s house around 4:00 that morning,
(2) Branscombe, unbeknownst to Richter, decided to
rob Johnson and shoot Klein, (3) after Klein was
shot, Richter decided to aid and abet Branscombe in
committing the robbery. Neither the State nor the
defendants argued such a theory of the case. Such a
conclusion would go against significant evidence
presented at trial, including the evidence showing
that Richter owned the same type of bullets used to
shoot Klein. This conclusion would also be inconsis-
tent with the testimony of both Richter and Johnson.
It is unlikely that any member of the jury arrived at
this conclusion.
Id. at 1237-38. We agree. See Fry v. Pliler, 551 U.S. 112,
121-22 (2007) (holding that in federal habeas proceedings, the
court must assess the prejudicial impact of constitutional error
in a state-court criminal trial under the “substantial and injuri-
ous effect” standard set forth in Brecht v. Abrahamson, 507
U.S. 619, 623 (1993), regardless of whether the state appellate
court recognized the error and reviewed it for harmlessness).
Fourth, Richter argues that the government withheld excul-
patory evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963), and the state court’s rejection of this claim was an
unreasonable application of Brady. During the trial, a state
investigator named Maloney went back to the crime scene and
examined a previously overlooked bullet hole in a floorboard.
He concluded that it was made by a .22 caliber bullet, which
9276 RICHTER v. HARRINGTON
was consistent with Johnson’s testimony that he never fired
his .380 at Branscombe and had made the hole while cleaning
his own .22. Maloney tried to find the bullet itself by cutting
away a piece of the floorboard with the hole in it. But he
dropped the piece into the crawl space under the house and
testified that it couldn’t be retrieved unless someone cut a
larger hole in the floor or removed “a good section of the side
of the house.” In fact, after the trial, Richter’s father easily
retrieved the floorboard by accessing the crawl space through
an opening behind the house. A different investigator then
looked at the hole and concluded that it was probably caused
by a .380 caliber bullet.
[4] The state court could reasonably have concluded that
producing the actual floorboard during the middle of trial
wouldn’t have “put the whole case in such a different light as
to undermine confidence in the verdict.” See Kyles v. Whitley,
514 U.S. 419, 435 (1995). Before dropping the piece of wood
into the crawl space, the state investigator placed a measuring
device next to the bullet hole and took photographs that were
turned over to the defense and made available to the jury.
Richter doesn’t argue that the photos were distorted or inaccu-
rate in any way.
[5] Finally, Richter argues that his lawyer should have fur-
ther investigated the hole and introduced evidence that it was
actually made by a .380 caliber weapon. But pursuing that
line may understandably have seemed like a waste of time.
See Rompilla v. Beard, 545 U.S. 374, 383 (2005). Johnson
admitted making the hole with a .22 caliber gun, though he
claimed it was on a different occasion, and the government’s
investigator confirmed the size of the hole. The state court
could reasonably have concluded that counsel made a strate-
gic decision to accept and use that evidence to support the
defense’s theory of the case, and that the decision was reason-
able at the time. Strickland, 466 U.S. at 689-90. Someone shot
Klein in the back with a .22, and Richter had to convince the
jury it wasn’t him. It helped to point out that Johnson admit-
RICHTER v. HARRINGTON 9277
ted shooting a .22 into the floor at some point: Counsel argued
to the jury that Johnson was the one firing a .22 on the night
of the murder, and that he actually shot the floor around the
same time he shot Klein.
AFFIRMED.