FILED
NOT FOR PUBLICATION OCT 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY SCHWARTZ, No. 10-16954
Petitioner - Appellant, D.C. No. 4:09-cv-00200-DCB
v.
MEMORANDUM*
CHARLES L. RYAN; TERRY
GODDARD,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted October 13, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Bradley Schwartz, an Arizona state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus. Schwartz contends that: (1) the
introduction of hearsay testimony at trial violated the Confrontation Clause; (2) the
prosecution engaged in multiple acts of misconduct that deprived him of his right
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to a fair trial; and (3) the trial court, in precluding him from presenting certain
impeachment witnesses, violated his right to due process.
1.
Because the Arizona Court of Appeals denied Schwartz’s Confrontation
Clause claim on the merits, the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) precludes federal habeas relief unless this decision was (1)
“contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1).
The state court’s decision was not contrary to, or an unreasonable
application of, federal law. First, the statements the admission of which Schwartz
challenges were not hearsay: they were not introduced to prove the truth of the
matter asserted by an out-of-court declarant, but instead to show that the person
who made one statement was likely the same person who made the other. The
Confrontation Clause “does not bar the use of . . . statements for purposes other
than establishing the truth of the matter asserted.” Crawford v. Washington, 541
U.S. 36, 59 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Second, the Clause bars the admission at trial only of “testimonial statements of a
witness who did not appear at trial.” Id. at 53-54 (emphasis added); Davis v.
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Washington, 547 U.S. 813, 821 (2006). Although the Supreme Court has not yet
defined precisely what constitutes a “testimonial” statement, it has identified as the
“core class” of such statements “a formal statement [made] to government
officers.” Crawford, 541 U.S. at 51; see also Davis, 547 U.S. at 822. The off-hand
remarks regarding pizza made by Schwartz’s coconspirator to a doctor about to
enter a seminar and a woman working in a convenience store do not remotely
approach the “core class” of statements that the Supreme Court has identified as
testimonial. The state court’s conclusion that introduction of these statements did
not violate the Confrontation Clause was therefore not unreasonable.
2.
The state court’s rejection of Schwartz’s prosecutorial misconduct claim was
likewise not an unreasonable application of federal law. Unconstitutional
prosecutorial misconduct occurs where the prosecutor engages in actions that “so
infect the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Schwartz
identifies seven separate instances in which, he claims, the prosecutor improperly
brought before the jury evidence that was either false or unduly prejudicial. Three
of these instances did not cause Schwartz any prejudice whatsoever: either the
testimony elicited by the prosecutor was properly before the jury, subsequent
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testimony revealed the falsity of the prior testimony, or the prosecution later
introduced the same facts through other, permissible channels. In the other four
instances, any harm to Schwartz, either individually or cumulatively, was minimal:
either the inferences the jury could have drawn from the prejudicial testimony
could also have been drawn from other admissible evidence, or the court struck the
improper evidence from the record and admonished the jury to disregard it. See
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (“We normally presume that a jury
will follow an instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an overwhelming probability that the jury will be
unable to follow the court's instructions.”) (citations and internal quotation marks
omitted). The state court’s conclusion that these purported acts of prosecutorial
misconduct did not “so infect the trial with unfairness” as to deny Schwartz due
process was therefore not unreasonable. See Towery v. Schiro, 641 F.3d 300, 306
(9th Cir. 2010).
3.
Because the Arizona Court of Appeals did not address Schwartz’s claim that
the trial court’s decision precluding him from introducing the testimony of certain
impeachment witnesses violated Chambers v. Mississippi, 410 U.S. 284 (1973), we
review this claim without applying § 2254(d)(1)’s deferential standard. See
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Williams v. Cavazos, 646 F.3d 626, 639 (9th Cir. 2011). The trial court determined
that Arizona Rule of Evidence 608(b) – which precludes the introduction of
evidence to contradict aspects of a witness’s testimony collateral to the central
issues at trial – barred Schwartz from introducing witnesses who would impeach
prosecution witness Lourdes Lopez’s testimony regarding why she had left her
former job and when she had reported Schwartz’s threats to one of her colleagues.
Neither fact was directly relevant to whether Schwartz had committed the crimes
with which he was charged. The trial court’s application of the state collateral
evidence rule to exclude this testimony therefore did not “infring[e] upon a
weighty interest of the accused” and was not “arbitrary or disproportionate to the
purposes [the rule was] designed to serve.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).
Schwartz thus was not deprived of due process.
AFFIRMED.
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