FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICAH A. HARRIS, No. 10-55370
Petitioner - Appellant, D.C. No. 3:09-cv-00503-IEG-AJB
v.
MEMORANDUM **
M. MARTEL, Warden and KAMALA D.
HARRIS,* Attorney General of the State of
California,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted November 10, 2011
Pasadena, California
*
Kamala D. Harris has been substituted for her predecessor, Jerry
Brown, as Attorney General for the State of California under Fed. R. App. P.
43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TALLMAN and MURGUIA, Circuit Judges, and ROSENTHAL,***
District Judge.
Micah Harris, a California state prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus. Under 28 U.S.C. § 2254(d)(1), Harris
must show that the California Court of Appeal’s decision was contrary to, or an
objectively unreasonable application of, federal law. See Cullen v. Pinholster, 131
S. Ct. 1388, 1398–99 (2011). We review the district court’s decision de novo,
Schultz v. Tilton, 659 F.3d 941, 942 (9th Cir. 2011) (per curiam), and we affirm.
First, Harris argues that the California Court of Appeal unreasonably applied
established federal law in rejecting the claim that testimony by two witnesses about
their own sexual encounters with him, amounting to prior uncharged sexual
offenses, violated his federal due process rights. “Our precedent squarely
forecloses this argument.” Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008).
Second, Harris argues that the California appellate court unreasonably
applied established federal law in rejecting his claim that the trial court’s
restrictions on his cross-examination of one of these witnesses about her
relationship with an ex-boyfriend violated his Sixth Amendment rights. Harris
argues that he should have been permitted to cross-examine the witness about her
***
The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
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fear of this ex-boyfriend to argue that the fear made her lie to the police about the
nature of her encounter with Harris. To meet his burden, Harris must show that the
California Court of Appeal was unreasonable in rejecting his argument that, had
the requested cross-examination been allowed, “[a] reasonable jury might have
received a significantly different impression of [the witness’s] credibility.”
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).
The Court of Appeal gave three reasons for its conclusion that Harris had not
made the necessary showing. First, the witness had stated during a pretrial hearing
that she was not afraid of her ex-boyfriend when she went to the police. Second,
the witness testified during Harris’s trial that she had previously obtained a
restraining order against her ex-boyfriend. Third, even if further cross-
examination would have produced evidence from which the jury could have
inferred that the witness feared her ex-boyfriend at the time of her sexual encounter
with Harris, and thus had reason to lie to the ex-boyfriend about the nature of the
encounter, that evidence would not explain why the witness reported the encounter
to the police over a year later, and Harris proffered no evidence that the witness
and her ex-boyfriend had been in contact since immediately after that encounter.
Fairminded jurists would not agree that these reasons were inconsistent with
Supreme Court precedent. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
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Olden v. Kentucky, 488 U.S. 227 (1998) (per curiam), the case on which Harris
relies, is easily distinguishable. In Olden, the witness and her boyfriend were in a
relationship at the time of the witness’s sexual encounter with the defendant, and
the two were living together at the time of the trial. Id. at 229–30. The nature of
the witnesses’s relationship with her ex-boyfriend in this case was very different
than the witness’s relationship in Olden.
Finally, Harris argues that the Court of Appeal unreasonably applied
established federal law in holding that sufficient evidence supported his conviction
for torture. See C AL. P ENAL C ODE § 206. The jury heard testimony from the
victim that Harris brutally assaulted her several times over a half-hour period,
including slamming her face into a metal rail. Her injuries were severe, requiring
reconstructive surgery. The victim testified that the assault began after she
complained to a friend that Harris was “not leaving me alone,” and that Harris
yelled “just stay with me” during the assault. The evidence in the record amply
supported the cruel nature of his acts. The Court of Appeal did not unreasonably
apply federal law in concluding that, “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
4
443 U.S. 307, 319 (1979) (emphasis in original); Juan H. v. Allen, 408 F.3d 1262,
1274 (9th Cir. 2005).
AFFIRMED.
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