FILED
NOT FOR PUBLICATION MAR 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL WAYNE HUNTER, No. 10-17926
Petitioner - Appellant, D.C. No. 5:06-cr-07707-JW
v.
MEMORANDUM*
P.D. BRAZELTON, Warden, and
MATTHEW L. CATE, Secretary of the
California Dept. of Corrections and
Rehabilitation,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted February 10, 2014
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and RICE, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
Michael Wayne Hunter (“Hunter”) appeals the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a). As the parties are familiar with the facts,
we recite them only as necessary to explain our decision. We affirm.
We assume, without deciding, that the state trial court erred in finding that
Hunter waived any claim of privilege to the materials in his first attorney’s case
file by disclosing the materials in Hunter Habeas I. We must decide whether this
error had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); accord Pulido v.
Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010), cert. denied, 132 S. Ct. 338 (2011).
We conclude that it did not.
First, the State confined its use of Dr. Berg’s testimony and the Aniline letter
to impeachment and rebuttal of Hunter’s diminished capacity defense. This limited
use of the contested evidence was permissible. See Harris v. New York, 401 U.S.
222, 225 (1971) (holding that a defendant who chooses to testify in his or her own
defense may not conceal contradictory statements obtained in violation of the Fifth
Amendment from the jury); Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987)
(holding that a defendant who asserts a diminished capacity defense through the
testimony of an examining psychiatrist waives his or her Fifth Amendment
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privilege against self-incrimination as to any statements made to the psychiatrist);
Kansas v. Cheever, ___ U.S. ___, 134 S. Ct. 596, 601 (2013) (“When a defendant
presents evidence through a psychological expert who has examined him, the
government likewise is permitted to use the only effective means of challenging
that evidence: testimony from an expert who has also examined him.”). Contrary
to Hunter’s assertions, Simmons v. United States, 390 U.S. 377 (1968), does not
foreclose this limited use of the contested evidence. See Kansas v. Ventris, 556
U.S. 586, 594 (2009) (noting that with the exception of coerced statements,
“tainted evidence—evidence whose very introduction does not constitute the
constitutional violation, but whose obtaining was constitutionally invalid—is
admissible for impeachment”). Moreover, even if we assume for the sake of
argument that Hunter’s statements to Dr. Berg and Dr. Aniline were effectively
“coerced,” there was no constitutional violation. See Cheever, 134 S. Ct. at 601
(holding that statements made during a compulsory psychological examination are
admissible to rebut a defendant’s diminished capacity defense).
Second, Hunter’s diminished capacity defense was severely undermined by
evidence of advance planning and organized thinking. The evidence adduced at
both trials showed, for example, that Hunter made statements to his friends about
wanting to kill his father, that he used a borrowed identification card to purchase
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the murder weapon, that he wore gloves and a motorcycle helmet to conceal his
identity while committing the crimes, that he destroyed evidence after the murders
to conceal his role in the crimes, and that he executed an elaborate plan to flee to
Mexico in the days after the killings. In view of this evidence, any constitutional
error in the State’s use of the contested evidence to impeach Hunter’s testimony
and to rebut his diminished capacity defense could not have had a substantial and
injurious effect or influence on the jury’s verdict.
We are not persuaded that the State’s access to the materials in Hunter’s
defense file amounts to structural error. Given that Hunter was represented by
counsel and tried by an impartial jury, we must apply a “strong presumption” that
any constitutional error is subject to harmless error analysis. Rose v. Clark, 478
U.S. 570, 578-79 (1986). Although the state trial court’s ruling “jeopardize[d] the
fairness of [Hunter’s] second trial,” Bittaker v. Woodford, 331 F.3d 715, 723 n.7
(9th Cir. 2003), the record before us does not “defy analysis by ‘harmless-error’
standards,” Arizona v. Fulminante, 499 U.S. 279, 309 (1991). The central issue at
both trials was whether Hunter was capable of forming the intent to commit first-
degree murder. There were very few disputed issues of fact; Hunter testified and
admitted to killing his father and stepmother, and there was substantial forensic
documentation of the manner in which the killings were committed. As a result,
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Hunter’s attorney had relatively few strategic decisions to make. Thus, any
strategic advantage the State may have gained by having access to the materials in
Hunter’s defense file was negligible. We therefore conclude that the state trial
court’s ruling did not have a substantial and injurious effect or influence on the
jury’s verdict. Brecht, 507 U.S. at 637.
Finally, we conclude that Hunter suffered no additional prejudice as a result
of the alleged prosecutorial misconduct. In light of our conclusions above, this
claim does not provide an independent basis for granting the petition.
The decision of the California appellate courts to deny habeas relief was not
objectively unreasonable under AEDPA. The decision of the federal district court
denying federal habeas relief is therefore AFFIRMED.
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