FILED
NOT FOR PUBLICATION FEB 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABACUC GUEVARA, No. 10-55835
Petitioner - Appellant, D.C. No. 5:09-cv-01144-R-DTB
v.
MEMORANDUM*
CONNIE GIPSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted August 27, 2013
Pasadena, California
Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.**
Abacuc Guevara appeals the district court’s denial of his petition for a writ
of habeas corpus. The California Court of Appeal upheld his convictions for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for the Eastern District of New York, sitting by designation.
1
murder and being a felon in possession of a gun after ruling that the erroneous
admission of preliminary hearing testimony was harmless.
In determining whether the state court’s error was harmless on collateral
review, we examine “the record as a whole” and ask whether the violation had a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); accord Merolillo v. Yates, 663
F.3d 444, 455 (9th Cir. 2011). Relevant considerations include “the importance of
the testimony, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony, the extent of cross-
examination permitted, and the overall strength of the prosecution’s case.”
Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011) (quoting Whelchel v.
Washington, 232 F.3d 1197, 1206 (9th Cir. 2000)). We have ruled that the
erroneous admission of testimony is not rendered harmless by corroborative
evidence if “(1) there was a reason for the jury to doubt the only eyewitness
testimony; (2) the third party testimony was not exceptionally strong; and (3) the
physical evidence connecting the accused to the crime was limited and explained
by [the defendant's theory of the case].” Id. (alteration in original) (quoting
Whelchel, 232 F.3d at 1208).
2
Aside from the preliminary hearing testimony, the jury heard of three eye-
witness identifications of Guevara and his motive to commit the crimes. The jury
had reason to doubt each piece of evidence presented, including the preliminary
hearing testimony, but the cumulative effect of multiple identifications
distinguishes this case from Ocampo. In light of the testimony from other
witnesses and Guevara’s opportunity for cross-examination at the preliminary
hearing, we conclude, consistent with Brecht, that the erroneous admission of the
preliminary hearing testimony did not have a substantial and injurious effect on the
jury’s verdict.
AFFIRMED
3
FILED
FEB 06 2014
Guevara v. Gipson., No. 10-55835
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
COGAN, District Judge, concurring.
In light of Judge Christen’s dissent, I write briefly to further explain my
concurrence in the majority decision.
Although I believe that the case is close, the Supreme Court made it clear in
Fry v. Pillar, 551 U.S. 112 (2007), that the “substantial and injurious effect or
influence” test for harmless error in Brecht v. Abrahamson, 507 U.S. 619 (1993),
subsumes the standard under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254(d). Because Fry held that Brecht is more
deferential to state court decisions than AEDPA, it follows that if a state court’s
decision would be upheld under AEDPA, then it must be upheld under Brecht.
From that perspective, the resolution of close cases like this becomes more
apparent. The Supreme Court has clarified that the AEDPA standard of review is
extremely narrow, and is intended only as “a ‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal[.]” Ryan v. Gonzales, __ U.S. __ , 133 S. Ct. 696, 708 (2013)
(quoting Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786). “[E]ven a strong
case for relief does not mean that the state court’s contrary conclusion was
unreasonable.” Harrington, 131 S. Ct. at 786. Indeed, in Harrington, the Supreme
Court went so far as to hold that a habeas court may only “issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme Court’s] precedents.” Id. This standard of
“no possibility” of disagreement among “fairminded jurists” as to the existence of
legal error is arguably the narrowest standard of judicial review in the law.
For the reasons stated in the majority opinion, the state court’s conclusion
that the improper admission of this evidence was harmless beyond a reasonable
doubt does not warrant relief under the Fry/Brecht/AEDPA standard. Fairminded
jurists could readily disagree as to the state court’s conclusion, which precludes
relief. Indeed, but for the dissent, all six state and federal judges who have
considered the issue have expressed the view that relief is not warranted.
Moreover, the state court issued a lengthy, reasoned decision, in which it set aside
two of the counts of conviction based on the error that we are considering, but
determined to uphold the other counts that remain before us.
This is not a case where there was an absence of evidence to support the
conviction. The properly-admitted evidence had vulnerabilities, but they were
vulnerabilities that could be placed before a jury, and which the state court
considered in determining that the error was harmless. I believe that the standard
of review adopted by the dissent is effectively one of ordinary error, not for the
kind of “grievous[] wrong”, Brecht, 507 U.S. at 637, that habeas corpus exists to
prevent, and therefore join the majority opinion.
FILED
Guevara v. Gipson., No. 10-55835 FEB 06 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTEN, Circuit Judge, dissenting.
As my colleagues note, the erroneous admission of evidence is not harmless
if the violation had a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 638 (1993). In my
view, the state court’s determination that the admission of April Romero’s
testimony did not have a substantial and injurious effect on the jury was
unreasonable. Romero testified at a preliminary hearing that Guevara came to her
and essentially confessed, but Romero was unavailable to testify at trial. Likely
because of the weaknesses in the testimony of the remaining witnesses, the
prosecutor stressed Romero’s preliminary hearing testimony in his closing
argument to the jury.
I respectfully disagree with my colleagues’ conclusion that “the cumulative
effect of multiple identifications distinguishes this case from Ocampo.” Ocampo v.
Vail teaches that corroborative evidence cannot render the wrongful introduction of
other evidence harmless if: “(1) there was a reason for the jury to doubt the only
eyewitness testimony; (2) the third party testimony was not exceptionally strong;
and (3) the physical evidence connecting the accused to the crime was limited and
explained by [the defendant's theory of the case].” 649 F.3d 1098, 1114 (9th Cir.
2011) (quoting Welchel v. Washington, 232 F.3d 1197, 1208 (9th cir. 2000)). In
this case, there was plenty of reason to doubt the remaining eyewitness testimony,
which was not “exceptionally strong.”
David Poplin — referring to handwritten notes — testified that Desiree
Robles told him she saw Guevara running away from the scene of the shootings.
But at trial, Robles denied seeing this, and denied telling Poplin that she did.
Norma Munoz testified that a 10-year-old child yelled “It was Abacuc!”
immediately after the shootings. But Munoz did not mention hearing this when she
was interviewed by police on the day of the murders. In fact, Munoz did not
mention this until a week before trial. Thomas Handgis, Jr. testified that he saw
Guevara run in front of his car carrying a gun, but he did not see the shooting.
Handgis identified Guevara in the courtroom, but his pretrial identification of
Guevara was problematic: he did not recognize Guevara at the time of the
shootings and Guevara’s photograph was one of two that Handgis picked out from
a photographic lineup.
Given this record, Romero’s testimony was so much stronger than that of all
the remaining witnesses that the state court was not only wrong, but also
unreasonable, in concluding that her testimony did not substantially influence the
jury’s verdict. AEDPA’s “standard is demanding but not insatiable.” Miller-El v.
Dretke, 545 U.S. 231, 240 (2005). “[W]here, as here, a state court doesn’t act
reasonably, deference comes to an end.” Doody v. Ryan, 649 F.3d 986, 1028 (9th
cir. 2011) (en banc) (Kozinski, C.J., concurring). I therefore respectfully dissent.