NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN ANTHONY ALMEDA, No. 12-17301
Petitioner - Appellant, D.C. No. 2:09-cv-01558-KJM-
GGH
v.
FRED FOULK, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted October 7, 2014**
San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.
I. John Almeda contends that the trial court denied his right to present a
defense by erroneously holding that an alibi witness was unavailable to testify. See
California v. Trombetta, 467 U.S. 479, 485 (1984). The California Court of
*
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).
Appeal denied this claim, holding that the trial court did not abuse its discretion by
finding that the witness was unavailable and that other witnesses could have
provided the same testimony. This decision was not contrary to or an unreasonable
application of clearly established Supreme Court precedent, see 28 U.S.C. §
2254(d)(1), nor an unreasonable determination of the facts. See 28 U.S.C. §
2254(d)(2).
II. Almeda argues that his right to a fair trial was violated when the trial court
refused to grant him a continuance or a mistrial. The decision whether to grant a
continuance “is made in the discretion of the trial judge, the exercise of which will
ordinarily not be reviewed.” Avery v. Alabama, 308 U.S. 444, 446 (1940); see
Renico v. Lett, 559 U.S. 766, 774 (2010) (applying similar standard to decision
whether to grant mistrial). It is clearly established law that a trial judge does not
abuse that discretion unless the decision to deny a continuance was “an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal
quotation marks omitted). Given this standard and the delays involved here, we
conclude that the California Court of Appeal’s decision denying this claim was not
an unreasonable application of Slappy. See 28 U.S.C. § 2254(d).
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III. Almeda argues that the trial court denied his right to compulsory process by
withdrawing a bench warrant for the alibi witness’s arrest. Supreme Court
precedent “establish[es], at a minimum, that criminal defendants have the right to
the government’s assistance in compelling the attendance of favorable witnesses at
trial and the right to put before a jury evidence that might influence the
determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). The
California Court of Appeal’s denial of this claim was not an unreasonable
application of clearly established Supreme Court precedent, because another bench
warrant remained outstanding and other witnesses could have been called to testify
to the same facts. See 28 U.S.C. § 2254(d).
IV. Almeda asserts that the trial court violated his right to confront an adverse
witness when it permitted the state to question the witness, in front of the jury,
when she was not under oath and refused to answer any questions. A prosecutor’s
continued questioning of a witness who refuses to answer his questions may
violate the confrontation clause when used to introduce evidence not otherwise in
the record. See Douglas v. Alabama, 380 U.S. 415, 419 (1965). Although it is not
good practice for a prosecutor to question a witness who is not under oath and
refuses to answer questions, the California Court of Appeal did not unreasonably
apply clearly established Supreme Court precedent when it denied this claim,
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because the trial court properly instructed the jury regarding the state’s questioning
and other admissible evidence provided the same information. See 28 U.S.C. §
2254(d).
AFFIRMED.
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