FILED
NOT FOR PUBLICATION SEP 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EARL BALL, No. 10-15050
Petitioner - Appellant, D.C. No. 4:07-cv-00491-DCB
v.
MEMORANDUM *
CHARLES L. RYAN and 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 September 14, 2012
San Francisco, California
Before: ALARCÓN, GRABER, and BERZON, Circuit Judges.
Petitioner-Appellant, Earl Ball, appeals from the district court’s order
denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Ball was
convicted in two trials of twelve counts of sexual exploitation of a minor, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of Arizona Revised Statutes §§ 13-3553(A)(2), 13-3551, 13-701, and 13-
801, based on his possession of two videotapes and ten photographs of child
pornography. He was sentenced to two aggravated sentences of ten years, to be
served consecutively, for his convictions related to the videotapes. Because the
parties are familiar with the history of this case, we need not recount it here. We
have jurisdiction to review Ball’s appeal under 28 U.S.C. §§ 1291 and 2253(a), and
we affirm.
This court reviews a district court’s decision to deny a habeas petition de
novo. Stokes v. Schriro, 465 F.3d 397, 401 (9th Cir. 2006). Because Ball filed his
petition after April 24, 1996, this court’s review of the state court’s decision is
governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). AEDPA prohibits granting the writ “with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim . . . resulted in a decision that was 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). This court “looks
through” the Arizona Supreme Court’s summary denial on direct appeal to the
Arizona Court of Appeals’ decision, as it is the last-reasoned state court decision in
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his case. Williams v. Cavazos, 646 F.3d 626, 635-36 (9th Cir. 2011), cert. granted,
132 S. Ct. 1088 (2012).
Ball contends that the Arizona Court of Appeals’ decision contradicted and
unreasonably applied Blakely v. Washington, 542 U.S. 296 (2004), when it
concluded that the relevant statutory maximum was set by Arizona’s Dangerous
Crimes Against Children (“DCAC”) statute, Ariz. Rev. Stat. § 13-604.01
(renumbered § 13-705), and that his sentences for the two videotapes did not
exceed that statutory maximum. Ball argues that the jury did not find, and he did
not admit, that “J,” the minor depicted in the videotapes, was under the age of
fifteen, as required for the application of the DCAC statute.
This court need not determine whether the Arizona Court of Appeals’
decision was contrary to or an unreasonable application of Blakely because, even
assuming it were, Ball has not shown that he suffered prejudice. The harmless
error standard applies to determine whether there was prejudice. Estrella v.
Ollison, 668 F.3d 593, 598 (9th Cir. 2011) (citing Washington v. Recuenco, 548
U.S. 212, 218-20 (2006)). The inquiry under the harmless error standard is
whether “in light of the record as a whole,” the error “‘had substantial and
injurious effect or influence in determining the jury’s verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States,
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328 U.S. 750, 776 (1946)). This court must grant relief if it is “in ‘grave doubt’ as
to whether a jury would have found the relevant aggravating factors beyond a
reasonable doubt.” Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
No evidence in the record suggests that the “J” was fifteen years old or
older. To the contrary, all evidence presented by Ball and the prosecution strongly
indicates that she was between the ages of ten and twelve-years old at the time the
videotapes were made. This evidence included the testimony of “J” and Ball’s ex-
wife, as well as the trial stipulation that the expert witness would testify that she
was between the ages of ten and twelve. Moreover, Ball’s counsel stated in her
opening argument to the jury that “there is no doubt” that the videotapes depict a
twelve-year old, and the videotape so characterized was before the jury. His
counsel made similar statements before the jury during voir dire and in pretrial and
post-trial motions and hearings. In light of the uncontradicted evidence of “J’s”
age, there is no grave doubt that the jury would have found beyond a reasonable
doubt that “J” was under fifteen years old. Any Blakely error therefore would be
harmless.
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We also decline Ball’s request to expand the certificate of appealability to
include his other arguments on appeal because he has failed to make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
AFFIRMED.
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