FILED
NOT FOR PUBLICATION OCT 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY RAUL BARRON, No. 13-15565
Petitioner - Appellant, D.C. No. 4:11-cv-02797-PJH
v.
MEMORANDUM*
MIKE STAINER,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 9, 2014
San Francisco, California
Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.**
Petitioner Anthony Barron appeals the denial of his 28 U.S.C. § 2254 habeas
petition. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
district court’s decision to deny a habeas petition, see Clabourne v. Ryan, 745 F.3d
362, 370 (9th Cir. 2014), and we affirm.
The state trial court refused to admit impeaching evidence that a testifying
officer had kicked Petitioner three times during his arrest. Petitioner claims that
this evidence supports the inference that the arresting officer never saw Petitioner
strike the victim with a knife but nevertheless gave false testimony in order to
justify his use of excessive force and avoid discipline. The California Court of
Appeal concluded that the exclusion of this impeachment evidence violated the
Confrontation Clause. We treat that finding of constitutional error as established.
The Court of Appeal then concluded that this error was harmless. Whether
we adopt deferential review under AEDPA or consider harmlessness independently
under Brecht v. Abrahamson, 507 U.S. 619 (1993), we agree with the state court.
When analyzing the prejudicial effect of a Confrontation Clause violation, we
review “(1) the importance of the witness’ testimony in the prosecution’s case; (2)
whether the testimony was cumulative; (3) the presence or absence of evidence
corroborating or contradicting the witness’ testimony on material points; (4) the
extent of cross-examination otherwise permitted; and (5) the overall strength of the
prosecution’s case.” Ortiz v. Yates, 704 F.3d 1026, 1039 (9th Cir. 2012). We will
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assume that the damaging potential of the precluded evidence would have been
fully realized but for the error. Id.
While the arresting officer’s testimony was important, the prosecution also
introduced substantial corroborating evidence at trial. Three other officers saw
Petitioner use a “sharp instrument . . . in a stabbing manner,” use “something in his
hand” to strike the victim in “his back, maybe shoulder blade area,” and clench his
hand “like he had something in there” and make a “stabbing motion.” Moreover,
photographs of the victim’s back taken twenty days after the assault showed a
wound where Petitioner supposedly stabbed him. Finally, a fifth officer testified
that the victim previously made comments indicating that Petitioner had stabbed
him. Given the corroborating evidence and the overall strength of the
prosecution’s case, the trial court’s error was harmless.
To the extent that Petitioner’s brief raises uncertified issues, we construe his
arguments as a motion to expand the certificate of appealability, and we deny the
motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th
Cir. 1999) (per curiam).
AFFIRMED.
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