NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LARRY AVERY SCOTT, No. 10-55319
Petitioner - Appellant, D.C. No. 2:06-cv-01995-DDP-SH
v.
MEMORANDUM*
RALPH M. DIAZ, Warden, SATF
Corcoran, California,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted August 5, 2014**
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Larry Avery Scott appeals the district court’s denial of his habeas corpus
petition. Scott contends that: (i) the erroneous admission of prior conduct evidence
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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resulted, independently or cumulatively, in a denial of his due process right to a
fair trial; and (ii) his trial counsel’s failure to object to a witness’s recorded
statement suggesting that Scott or another defendant was “[t]he guy that killed . . .
Gil Bailey” constituted ineffective assistance of counsel. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.1
I
Scott contends that admission of witness statements suggesting that he shot
someone and killed someone else resulted, independently or cumulatively, in a
denial of his due process right to a fair trial. A state trial court’s evidentiary
rulings do not provide grounds for federal habeas relief unless “the alleged errors
rise to the level of a due process violation.” Estelle v. McGuire, 502 U.S. 62, 67
(1991).
Shannon Brown’s testimony that Scott had shot her husband was relevant
because it was responsive to defense counsel’s questioning and revealed her bias
against Scott. Will Brown’s recorded statement suggesting that one of the
defendants “killed . . . Gil Bailey” was relevant to Will Brown’s fear of Scott and
his co-defendant, which provided a possible explanation for Will Brown’s failure
1
Because the parties are familiar with the history of the case, we repeat only
those facts necessary to explain our decision.
2
to identify Scott or the co-defendant at trial. Because the jury could draw
permissible inferences from the contested evidence, and the court instructed the
jury to consider the evidence only for its legitimate purposes, the state court’s
determination that none of the contested evidence was erroneously admitted was
not contrary to or an unreasonable application of clearly established federal law.
See Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011) (quoting 28 U.S.C.
§ 2254(d)(1)); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
Moreover, even if any of the evidence was admitted in error, Scott has not
shown that any of these errors had a substantial and injurious effect or influence on
the jury verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The trial
judge admonished the jury multiple times that Shannon Brown’s statements were
admitted for only the limited purpose of assessing her credibility or state of mind.
The trial judge clarified that there was no evidence, arrest, or prosecution against
Scott for shooting Shannon Brown’s husband. Additionally, Will Brown’s
statement about Gil Bailey’s killer was ambiguous as to whom it referred, part of a
poor-quality recording, and never mentioned again throughout the trial.
Accordingly, any error did not have a substantial and injurious effect or influence
on the jury verdict.
II
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Scott contends that his trial counsel’s failure to object to Will Brown’s
statement regarding “[t]he guy” that killed Gil Bailey violated his rights under the
Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668, 687 (1984),
Scott must demonstrate that: (1) his defense counsel’s performance fell below an
objective standard of reasonableness; and (2) the deficient performance prejudiced
the defense.
The California Court of Appeal determined that Will Brown’s statement was
properly admitted, meaning that any objection would have been meritless. See
Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (holding that the state
court was not objectively unreasonable in determining that the performance of
counsel did not fall below an objective standard of reasonableness for failing to
make a meritless objection). Scott also fails to show any prejudice as a result of
the failure to object. As discussed previously, the statement was ambiguous as to
the killer’s identity, was part of a poor-quality recording, and never came up again
throughout the entire trial. These facts do not suggest a reasonable probability that,
but for trial counsel’s failure to object, Scott would have been acquitted. The state
courts’ denial of this claim was not contrary to, or an unreasonable application of
Strickland. See Richter, 131 S. Ct. at 783-84 (quoting 28 U.S.C. § 2254(d)(1)).
AFFIRMED.
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