John Gary Arredondo v. George Ortiz

RYMER, Circuit Judge:

John Gary Arredondo appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Arredondo was convicted by a superior court jury in April 1999 of assault by means of force likely to produce great bodily injury and battery with serious bodily injury in violation of California Penal Code §§ 243(d), 245(a)(1). The only issue before us is whether the trial court violated Arredondo’s Sixth Amendment right to present a defense by refusing to order a witness to testify after the witness invoked his Fifth Amendment privilege against self-incrimination as to prior convictions and pending charges. As the California Court of Appeal’s decision upholding the trial court’s ruling did not run afoul of clearly established law as determined by the United States Supreme Court, we affirm.

I

Arredondo and Robert Reed lived in different rooms in an old hotel in downtown Los Angeles. They were friends and occasionally borrowed money from each other, but they got into a fight on the *780evening of September 17, 1998. According to Reed, Arredondo appeared at Reed’s door and demanded that Reed repay $10. Reed, who was intoxicated, told Arredondo he did not have the money and asked him to leave. Arredondo entered the room, continuing to demand the money. When Reed pushed him and told him to leave, Arredondo grabbed and shook Reed, hit him, and threw him to the ground. Reed was too intoxicated to fight back. Arre-dondo first kicked Reed in the chest and then got on top of him and punched him several times in the face. Arredondo left and Reed lost consciousness for at least 30 minutes. When Reed regained consciousness, he went to sleep. The next day Reed realized he needed medical attention, and was hospitalized for four days. The attack caused cerebral bleeding, a fractured eye socket, a cut inside of his mouth, and scalp injuries.

Arredondo’s version was quite different. Arredondo testified that he went to Reed’s room to collect a debt, and that for no reason, Reed hit him in the head and then pulled him into his room, causing the two men to fall. As the two stood up, Reed hit Arredondo two more times. At that point, Arredondo, acting in self-defense, hit Reed twice. Reed responded by hitting him in the head with a broom. The two men again fell down. Reed stood up and approached Arredondo with a knife. Arre-dondo grabbed Reed and hit him four times, hoping to render him unconscious. Reed dropped the knife and fell onto the bed. Arredondo left.

Before trial, Arredondo’s counsel indicated that he intended to call Jeffrey Hansen to testify that he and a companion saw Arredondo knock on Reed’s door and ask for money. Reed opened the door, and punched Arredondo in the face, causing Arredondo to fall backward and then forward into Reed’s room, landing on Reed. The door closed, and Hansen and his companion left.

Hansen, who was facing an alcohol theft charge in an unrelated Three Strikes case in which four prior convictions were alleged, was represented by Deputy Public Defender Peter Swarth. Swarth acknowledged that the prosecutor could properly impeach Hansen on cross-examination with his prior felony convictions, but explained that Hansen’s answers could potentially incriminate him in his own trial if Hansen later decided to contest whether he had suffered the priors. Swarth also acknowledged that it would be' reasonable to question Hansen about his pending charge-because theft is a crime of moral turpitude, yet explained that such questioning could get Hansen “into very [sic] trouble.” Finally, Swarth told the court that he believed Hansen was on parole, raising the possibility that Hansen’s presence at the hotel or his association with Arredondo could constitute, a parole violation. Swarth asked to be present during Hansen’s testimony so that he could review with Hansen on a question-by-question basis the decision whether to invoke his Fifth Amendment right. The trial court deferred ruling until the defense case was-presented.

When that. time came, Arredondo offered to stipulate to Hansen’s convictions but the prosecution declined. Swarth represented that he had advised Hansen not to testify. Hansen was sworn, and stated that he wanted to “take the Fifth.” The trial court concluded that it could not order Hansen to testify, particularly given Swarth’s advice and the substantial liability he was facing. The court then ruled that Hansen should not be called in front of the jury or be allowed to testify on direct as he could not be cross-examined.

Arredondo was convicted and subsequently sentenced to an aggregated term of 45 years to life on account of four prior *781“serious” felony convictions within the meaning of California’s Three Strikes law. The California Court of Appeal reversed two of the prior conviction enhancements, but rejected Arredondo’s challenge to the trial court’s decision to exclude Hansen’s testimony. Arredondo’s petition for review was denied by the California Supreme Court.

Arredondo filed a habeas petition in district court claiming that his constitutional right to present a defense \yas violated when the trial court accepted Hansen’s invocation of the Fifth Amendment. The district court denied the petition and Arre-dondo’s application for a certificate of ap-pealability (COA). However, we granted a COA on one issue: “whether the trial court violated appellant’s Sixth Amendment right to present a defense by refusing to order a witness to testify after the witness invoked his Fifth Amendment privilege against self-incrimination as to collateral matters.”

II

We review a district court’s decision to grant or deny a 28 U.S.C. § 2254 habeas petition de novo. See Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002). Because Arredondo’s petition was filed after April 24, 1996, the amendments to § 2254 under the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. Id. Under AEDPA, Arredondo is not eligible for federal habeas relief unless the decision of the California Court of Appeal, the last reasoned decision from the state court system, was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Benn, 283 F.3d at 1051.

First, however, we must consider whether a Teague analysis is required. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), teaches that a new rule of constitutional law.cannot be applied retroactively on federal collateral review to upset a state conviction or sentence unless the new rule forbids criminal punishment of primary, individual conduct or is a “watershed” rule of criminal procedure. Caspari v. Bohlen, 510 U.S. 383, 396, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). The Supreme Court has made clear that federal courts must decide .at the outset whether Teague is implicated if the state argues that the petitioner seeks the benefit of a new rule. Id. at 389, 114 S.Ct. 948. This is true regardless of whether, the case is governed by AEDPA. Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We fully recognize our Teague obligation, but do not believe it has been triggered in this case. The state does mention Teague in its- brief, but only in passing. The brief simply asserts that reasonable jurists could conclude under the facts of this case that Arredondo’s claim lacks merit. This is not an argument, let alone a developed argument. Normally we decline to address an issue that is simply mentioned but not argued, Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir.2001), and we see no reason to depart from that practice in a habeas appeal. If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed, the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an *782argument should be made why the rule contended for is not within one of Teague’s exceptions. No true Teague argument having been made by the state in this case, we decline to conduct a Teague analysis on our own. Caspari, 510 U.S. at 389, 114 S.Ct. 948 (noting that courts may, but do not have to, decline to apply Teague if the state does not argue it) (citing Schiro v. Farley, 510 U.S. 222, 228-29, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)).

Ill

Arredondo’s appeal turns on his view that the Fifth Amendment privilege against self-incrimination applies only to testimony that relates directly to the matters at issue in his criminal trial, not to “collateral” matters. For this he relies on United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir.1991) (drawing line between direct and collateral matters); Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir.1992) (upholding exclusion of defense witness’s testimony when the witness refused on cross-examination to respond to questions on non-collateral matters); and United States v. Lord, 711 F.2d 887, 892 (9th Cir.1983) (holding it was error to strike all of the testimony of a witness who refused to answer question about informant’s suppliers). He contends that the' right to present witnesses has long been recognized as essential to due process, Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and that Hansen had no Fifth Amendment right not to testify because his observations of Reed and Arredondo would not have implicated Hansen in any crime. Arredondo points out that the Court held in Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), that the privilege can be sustained when it is evident from the question that an answer might be dangerous because injurious disclosure might result, but that what Hansen saw in the hallway could not result in an injurious disclosure because his statements about what he saw are not criminal in nature. Based on the same reasoning, Arredondo also argues that the trial court should not have sustained Hansen’s privilege on a blanket basis. For this he relies upon Ninth Circuit precedent requiring that the privilege be invoked in response to specific questions, not on a blanket basis, unless the witness can legitimately refuse to answer all relevant questions. See United States v. Pierce, 561 F.2d 735, 741 (9th Cir.1977).

Arredondo’s reliance on Ninth Circuit or other circuit authority is misplaced. He must show that the California Court of Appeal decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1) (emphasis added). This he has not done, and cannot do. Chambers and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), stand for the general proposition that a defendant’s right to present a defense includes the right to offer testimony by witnesses and to compel their attendance. Neither case involved a witness’s invocation of his Fifth Amendment privilege against self-incrimination. Hoffman does, but it says nothing about whether a trial court may, or may not, refuse to order a witness to testify after invoking the privilege as to prior convictions and pending charges. Nor does it hold that the privilege must always be invoked question-by-question.

In Chambers, the defendant was unable to cross-examine a witness who had repudiated a prior confession or to present witnesses who would have discredited that witness’s repudiation and demonstrated his complicity in the crime for which the defendant was accused because of the state’s *783“party witness” or “voucher” rule and its hearsay rule. Chambers, 410 U.S. at 294, 93 S.Ct. 1038. The Court held that exclusion of this critical evidence that directly affected the ascertainment of guilt denied Chambers a fair trial. Id. at 302-03, 93 S.Ct. 1038. In Washington, a percipient witness was prevented from testifying by a state statute, which the Court held violated the defendant’s Sixth Amendment right to have compulsory process for obtaining witnesses made applicable to the states through ■ the Fourteenth Amendment. Washington, 388 U.S. at 23, 87 S.Ct. 1920. At the same time, the Court stated in Chambers that a defendant’s right to present relevant testimony is not without limitation and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295, 93 S.Ct. 1038; see also Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (considering a rape-shield statute); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (recognizing trial judge’s “wide latitude” to limit reasonably a defendant’s right to cross-examine a witness based on concerns of harassment, confusion of the issues, the witness’s safety, etc.). In Hoffman, a witness subpoenaed to testify before a grand jury refused tp. obey a federal court order requiring him to answer questions with respect to which he invoked the Fifth Amendment. The Court reaffirmed that the provision against self-incrimination must be accorded a liberal construction, and reversed the order to testify. In so doing it explained that the trial judge in appraising the claim “ ‘must be governed as much by his personal perception of the peculiarities of the case . as by the facts actually in evidence.’ ” Hoffman, 341 U.S. at 487, 71 S.Ct. 814 (quoting Ex parte Irvine, 74 F. 954, 960 (1896) (Taft, J.)).

In light of these precedents we cannot say that the California Court of Appeal decision was contrary to, or an unreasonable application of, law established by the Supreme Court. There is no question that a witness’s credibility is properly subject to exploration once he takes the stand. Indeed, Arredondo does not quarrel with the prosecution’s right to discredit Hansen by his criminal record or with Hansen’s right to invoke his Fifth Amendment privilege with respect to his prior convictions and pending theft charge. He posits impropriety only in disallowing all testimony when -the privilege would have extended only to “collateral” matters. However, this is.not a distinction that the Supreme Court has made, so the California Court of Appeal’s decision is not contrary to clearly established law. See Williams v. Borg, 139 F.3d 737, 741 (9th Cir.1998) (rejecting a defendant’s attempt to “elevate to a constitutional level the distinction between cross-examination on collateral and non-collateral matters”).

While the right to call witnesses on behalf of the defense is well established, the Supreme Court has indicated that the right is not without limitation and it has never indicated that a trial court has no discretion in determining whether the areas on which a defense witness has properly invoked the Fifth Amendment will so affect the probative value or prejudicial impact of his testimony as á whole that he should not-be allowed to take the stand at all. The alternative is for the witness to testify on direct, then to strike his testimony upon refusal to answer any questions on cross-examination having to do with his credibility. It is not objectively unreasonable for the trial court in Arredondo’s case to have perceived that such an exercise would have been pointless, confusing and wasteful. Hansen’s unimpeached testimony could have been helpful to Arredondo because it would have bolstered Axredon-*784•do’s position that Reed'was the aggressor. However, his testimony then would have been impeached and his perception stopped at the door, for it was inside the room that the real fight — and the credibility contest between Reed and Arredondo— took place. In any event, the trial judge had heard the evidence and was in the best position to gauge Hansen’s claim of privilege and its effect on the case before him. Even though a stipulation to the damaging information that would otherwise be elicited on cross-examination may have alleviated the conundrum, there is no requirement embedded in Supreme Court law that the witness or the prosecution accede. Finally, the defense is not without options in these circumstances, for immunity may also be sought for the witness.

AFFIRMED.