MERAS v. Sisto

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD L. MERAS, 

Petitioner-Appellant,

No. 09-15399

v.

D.K. SISTO; ATTORNEY  D.C. No.

1:07-cv-00400-JMD

GENERAL OF THE STATE OF

OPINION

CALIFORNIA,

Respondents-Appellees.



Appeal from the United States District Court

for the Eastern District of California

John M. Dixon Jr., Magistrate Judge, Presiding

Argued and Submitted

November 15, 2011—San Francisco, California

Filed April 23, 2012

Before: Alex Kozinski, Chief Judge, Carlos T. Bea,

Circuit Judge, and Robert W. Gettleman, District Judge.*

Opinion by Chief Judge Kozinski;

Concurrence by Judge Bea

*The Honorable Robert W. Gettleman, Senior United States District

Judge for the Northern District of Illinois, sitting by designation.

4317

MERAS v. SISTO 4319

COUNSEL

Barry L. Morris, Walnut Creek, California, for the petitioner-

appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell,

Senior Assistant Attorney General, Brian G. Smiley, Super-

vising Deputy Attorney General, Daniel B. Bernstein

(argued), Deputy Attorney General, Office of the California

Attorney General, Sacramento, California, for the

respondents-appellees.

4320 MERAS v. SISTO

OPINION

KOZINSKI, Chief Judge:

Edward L. Meras, a California state prisoner, appeals the

district court’s order denying his petition for a writ of habeas

corpus. He claims that testimony introduced during his trial

violated his Sixth Amendment right to confrontation. He’s

probably right, but he loses anyway.

Background

Intruders broke into Richard Peabody’s home, stabbed him

multiple times and stole property. Soon after, police found a

bloodstained pair of blue jeans in Meras’s apartment. Crimi-

nalist Jennai Lawson performed DNA analysis on the blood

and produced a lab report concluding that it was Peabody’s.

Lawson testified at Meras’s first trial, which ended in a hung

jury. She was busy during Meras’s second trial, so the state

called her supervisor, Jill Spriggs, to testify to the contents of

her report. Meras objected that Lawson’s report was hearsay,

and introducing it through Spriggs would violate his right to

confront witnesses against him. The court overruled the

objection, holding that the report was admissible under the

business records exception to the hearsay rule, and allowed

Spriggs to testify to its contents:

Q. [D]oes the file reflect where Ms. Lawson got

[the jeans] from?

A. Yes, she got them from the freezer.

Q. Great. Did she also receive blood samples asso-

ciated with . . . Edward Meras and Richard Pea-

body?

A. Yes.

MERAS v. SISTO 4321

Q. And did she perform DNA typing analysis on

those items of evidence?

A. Yes.

Q. And what were the results of the tests that she

performed on those items?

A. The . . . genetic profile, obtained from blood

stains on the . . . jeans[, is] the same as Richard

Peabody’s.

The jury found Meras guilty of robbery, burglary and

assault with a deadly weapon. He appealed the Confrontation

Clause ruling, but the California Court of Appeal affirmed in

a reasoned decision. People v. Meras, No. F044043, 2005 WL

1562735 (Cal. Ct. App. July 5, 2005) (unpublished). The Cali-

fornia Supreme Court summarily denied review, and Meras

did not file a petition for a writ of certiorari.

He did file a timely federal habeas petition, which the dis-

trict court denied. Meras v. Sisto, No. 1:07-cv-00400-JMD-

HC, 2009 WL 382641 (E.D. Cal. Feb. 13, 2009) (unpublished

order). We granted a certificate of appealability as to

“whether the trial court violated [Meras’s] Sixth Amendment

right to confrontation by admitting a non-testifying expert’s

lab report and/or extrajudicial statements into evidence.”

Analysis

[1] We review the district court’s decision de novo. Doody

v. Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc). Under

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the district court was bound to reject Meras’s

Confrontation Clause claim unless the state court’s adjudica-

tion resulted in a decision that either (1) “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

4322 MERAS v. SISTO

United States,” or (2) “was based on an unreasonable determi-

nation of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Meras relies on

the former provision.

[2] 1. We must first decide what constitutes “clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States,” for purposes of Meras’s Confrontation

Clause claim. See Lockyer v. Andrade, 538 U.S. 63, 71

(2003). Section 2254(d)’s “backward-looking language

requires an examination of the state-court decision at the time

it was made.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011)

(internal quotation marks omitted). It “requires federal courts

to focu[s] on what a state court knew and did,” so “clearly

established Federal law” includes only Supreme Court deci-

sions “as of the time the state court renders its decision.” Id.

(internal quotation marks omitted) (emphasis and alteration in

original); see Nardi v. Pepe, 662 F.3d 107, 110 (1st Cir. 2011)

(“[O]nly Supreme Court precedent in effect at the time of the

state court adjudication on the merits counts as ‘clearly estab-

lished Federal law . . . .’ ” (quoting id.)). The last state court

adjudication on the merits of Meras’s claim was that of the

California Court of Appeal in 2005.

[3] Meras relies on three Supreme Court decisions: Craw-

ford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009), and Bullcoming v.

New Mexico, 131 S. Ct. 2705 (2011). Of these, only Crawford

was decided before the Court of Appeal affirmed Meras’s

conviction, so only Crawford constitutes “clearly established

Federal law” for purposes of our review. See Greene, 132 S.

Ct. at 44; Nardi, 662 F.3d at 110 (“[T]he only pertinent

Supreme Court precedent that applied at the time of the

[2008] decision affirming Nardi’s conviction was Craw-

ford.”).

Meras argues that we can nevertheless rely on Melendez-

Diaz and Bullcoming because their holdings were “dictated by

MERAS v. SISTO 4323

precedent existing at the time [his] conviction became final”

and are therefore retroactive under Teague v. Lane, 489 U.S.

288, 301 (1989) (emphasis omitted). However, the Supreme

Court recently explained that “the AEDPA and Teague inqui-

ries are distinct. The retroactivity rules that govern federal

habeas review on the merits—which include Teague—are

quite separate from the relitigation bar imposed by AEDPA;

neither abrogates or qualifies the other.” Greene, 132 S. Ct.

at 44 (internal citation and quotation marks omitted). Even if

applying Melendez-Diaz and Bullcoming to Meras’s claim

would comport with Teague, doing so would contravene sec-

tion 2254(d)(1) by “authoriz[ing] relief when a state-court

merits adjudication resulted in a decision that became con-

trary to, or an unreasonable application of, clearly established

Federal law.” Id. (internal quotation marks omitted) (empha-

sis in original).

In Greene, the Supreme Court left open the question of

“[w]hether § 2254(d)(1) would bar a federal habeas petitioner

from relying on a decision that came after the last state-court

adjudication on the merits, but fell within one of the excep-

tions recognized in Teague, 489 U.S. at 311.” Id. at 44 n.*;

see Teague, 489 U.S. at 311 (“[A] new rule should be applied

retroactively if it places certain kinds of primary, private indi-

vidual conduct beyond the power of the criminal law” or con-

stitutes a “watershed rule[ ] of criminal procedure.” (internal

quotation marks omitted)). Meras doesn’t argue that

Melendez-Diaz or Bullcoming fell within one of Teague’s

exceptions, so we express no view on the question left unan-

swered by Greene.

[4] 2. In Crawford, 541 U.S. at 54-55, the Supreme Court

held that the Confrontation Clause prohibits the “admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a

prior opportunity for cross-examination.” The Court of

Appeal held that Lawson’s lab report was not “testimonial”

under Crawford and therefore did not trigger Meras’s right to

4324 MERAS v. SISTO

confrontation. Meras, 2005 WL 1562735, at *3. Meras must

show that “there is no possibility fairminded jurists could dis-

agree that the state court’s decision conflicts with” Crawford.

Harrington v. Richter, 131 S. Ct. 770, 786 (2011); see also

Bobby v. Dixon, 132 S. Ct. 26, 27 (2011) (per curiam).

[5] Meras argues that forensic lab reports are testimonial

because they’re produced in anticipation of litigation. But

Crawford didn’t “clearly establish” such a rule. The Court

identified “[v]arious formulations” that had been offered to

define the “core class of ‘testimonial’ statements.” Crawford,

541 U.S. at 51. One of these formulations included statements

“made under circumstances which would lead an objective

witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 52 (internal quotation

marks omitted). But the Court did not adopt this formulation,

or any other. It left “for another day any effort to spell out a

comprehensive definition of ‘testimonial,’ ” and held only

that, “[w]hatever else the term covers, it applies at a minimum

to prior testimony at a preliminary hearing, before a grand

jury, or at a former trial; and to police interrogations.” Id. at

68. This left the term susceptible to a broad range of reason-

able applications. See Yarborough v. Alvarado, 541 U.S. 652,

664 (2004). Indeed, the Court acknowledged that its “refusal

to articulate a comprehensive definition [would] cause interim

uncertainty.” Crawford, 541 U.S. at 68 n.10.

[6] The question presented by Meras’s claim—whether

forensic lab reports are testimonial—“was exactly one of

those areas of uncertainty.” Likely v. Ruane, 642 F.3d 99, 102

(1st Cir. 2011). State and federal appellate courts divided

sharply over the question until the Supreme Court resolved

the split in Melendez-Diaz, 129 S. Ct. 2527. Some courts held

that forensic lab reports were testimonial. See State v. John-

son, 982 So. 2d 672, 679-80 (Fla. 2008) (compiling cases).

Many others disagreed, and had rational bases for doing so.

For example, dicta in Crawford explained that the Confronta-

tion Clause incorporated “those [hearsay] exceptions estab-

MERAS v. SISTO 4325

lished at the time of the founding. . . . Most of the[m] covered

statements that by their nature were not testimonial—for

example, business records . . . .” Crawford, 541 U.S. at 54 56;

see also id. at 76 (Rehnquist, C.J., concurring in the judg-

ment) (“To its credit, the Court’s analysis of ‘testimony’

excludes at least some hearsay exceptions, such as business

records and official records.”). A number of courts therefore

held that forensic lab reports were nontestimonial because

they qualified as business records. See, e.g., United States v.

De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008); United States

v. Ellis, 460 F.3d 920, 925-26 (7th Cir. 2006); Pruitt v. State,

954 So. 2d 611, 616 (Ala. Crim. App. 2006); Commonwealth

v. Verde, 827 N.E.2d 701, 705 (Mass. 2005); State v. Forte,

629 S.E.2d 137, 143 (N.C. 2006); cf. State v. Thackaberry, 95

P.3d 1142, 1145 (Or. Ct. App. 2004). These courts identified

material differences between business records and the kinds

of statements Crawford held to be testimonial—“prior testi-

mony at a preliminary hearing, before a grand jury, or at a for-

mer trial” and “police interrogations.” Crawford, 541 U.S. at

68. “Among other attributes, business records are neutral, are

created to serve a number of purposes important to the creat-

ing organization, and are not inherently subject to manipula-

tion or abuse.” Forte, 629 S.E.2d at 143.

Courts further distinguished forensic lab reports from testi-

monial statements on the ground that the former are “not

based on speculation, opinion, or guesswork, but instead [are]

founded in scientific testing to determine the physical and

chemical composition of the substance and the amount or

quantity of the substance.” Pruitt, 954 So. 2d at 617 (citing

Verde, 827 N.E.2d at 705). “Although the report is prepared

for trial, the process is routine, non-adversarial, and made to

ensure an accurate measurement.” State v. Dedman, 102 P.3d

628, 636 (N.M. 2004). Unlike testimonial statements, lab

reports “are neutral, having the power to exonerate as well as

convict.” Forte, 629 S.E.2d at 143.

[7] When the Supreme Court eventually held that forensic

lab reports are testimonial, four Justices vigorously dissented.

4326 MERAS v. SISTO

Writing on their behalf was Justice Kennedy, who was with

the majority in Crawford. While continuing to believe Craw-

ford was correctly decided, he wrote for the Melendez-Diaz

dissenters that the majority “swe[pt] away an accepted rule

governing the admission of scientific evidence” that had

“been established for at least 90 years” and “extend[ed] across

at least 35 states and six Federal Courts of Appeals.”

Melendez-Diaz, 129 S. Ct. at 2543 (Kennedy, J., dissenting).

In the view of Justice Kennedy and those who joined him,

Crawford “said nothing about scientific analysis or scientific

analysts.” Id. at 2555. Rather, Crawford addressed “formal

statements made by a conventional witness—one who has

personal knowledge of some aspect of the defendant’s guilt.”

Id. at 2543. The dissenters saw crucial differences between

the two: “First, a conventional witness recalls events observed

in the past, while an analyst’s report contains near-

contemporaneous observations of the test. An observation

recorded at the time it is made is unlike the usual act of testi-

fying.” Id. at 2551. “Second, an analyst observes neither the

crime nor any human action related to it. Often, the analyst

does not know the defendant’s identity, much less have per-

sonal knowledge of an aspect of the defendant’s guilt.” Id. at

2552. “Third, a conventional witness responds to questions

under interrogation. But laboratory tests . . . are not dependent

upon or controlled by interrogation of any sort. . . . [T]hey are

[not] produced by, or with the involvement of, adversarial

government officials responsible for investigating and prose-

cuting crime.” Id. (internal citation and quotation marks omit-

ted).

[8] In light of the extensive, reasoned disagreement

between the lower courts as to the question presented by

Meras’s claim, and between the Justices when they reached

the issue, “we cannot say that the state court unreasonably

applied clearly established Federal law.” Bailey v. Newland,

263 F.3d 1022, 1032 (9th Cir. 2001); see Thompson v. Bat-

taglia, 458 F.3d 614, 619 (7th Cir. 2006) (“The variety in

practice among the state courts and the various federal courts

MERAS v. SISTO 4327

shows . . . that there is no standard clearly established by the

Supreme Court of the United States . . . .”); Likely, 642 F.3d

at 102 n.5 (“[T]hat four Justices dissented in Melendez-Diaz

reaffirms that Crawford had not resolved the question

Melendez-Diaz addressed.”). We need not speculate as to

whether “fairminded jurists could disagree that the” Court of

Appeal’s decision on Meras’s claim involved an unreasonable

application of Crawford. Harrington, 131 S. Ct. at 786

(emphasis added). They in fact did.

***

[9] We therefore have a case here where the state court

probably committed constitutional error, but we are not free

to correct it. This is the nature and effect of AEDPA. See

Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J.,

concurring) (“Were I a California state judge, I would likely

hold that Payton’s penalty-phase proceeding violated the

Eighth Amendment. . . . Nonetheless, in circumstances like

the present, a federal judge must leave in place a state-court

decision . . . .”). The error could have been brought before the

Supreme Court in a correctable posture, had Meras filed a cert

petition after the California Supreme Court denied review in

2005. The case would have arrived at the Court nearly two

years before Melendez-Diaz, and it’s possible the Court would

have granted cert and decided in Meras’s case that forensic

lab reports are testimonial. But Melendez-Diaz involved a lab

report submitted without live testimony, whereas Meras’s

case has the added complication that the report was intro-

duced through the testimony of the author’s supervisor. The

Court did not decide until 2011, in Bullcoming, that the right

to confrontation could be satisfied only by the live testimony

of a declarant. See Bullcoming, 131 S. Ct. at 2716 (“In short,

when the State elected to introduce Caylor’s certification,

Caylor became a witness Bullcoming had the right to con-

front.”). A properly phrased petition in Meras’s case could

have raised both issues, and it’s not inconceivable that the

Court would have granted cert and decided both, and perhaps

4328 MERAS v. SISTO

also resolved the question flagged by Justice Sotomayor’s

concurrence in Bullcoming. See id. at 2722 (Sotomayor, J.,

concurring in part) (“[T]his is not a case in which the person

testifying is a supervisor, reviewer, or someone else with a

personal, albeit limited, connection to the scientific test at

issue.”). Meras does not challenge the effectiveness of his

appellate counsel, so we have no occasion to decide whether

failure to file a cert petition raising all of these issues was

deficient or prejudicial.

AFFIRMED.

BEA, Circuit Judge, concurring in part and concurring in

judgment:

I join the great majority of Chief Judge Kozinski’s opinion,

because it clearly comes to the correct conclusion under the

deferential standard of review we are required to apply under

AEDPA. But I cannot join the portions of the opinion at the

beginning and the end where the majority ventures to deter-

mine, in what sounds to me very much to be de novo review,

that Meras’s constitutional rights were “probably” violated.

See Op. 4320; 4327. Under 18 U.S.C. § 2254(d), we must

determine only whether the California courts unreasonably

applied federal law as determined by the Supreme Court.

Raising the issue whether Meras’s rights were actually vio-

lated is not part of this case. I therefore do not join the panel

majority in its observation that Meras’s constitutional Con-

frontation Clause rights were “probably” violated.

1.

As a matter of current constitutional law, it is clear after

Melendez-Diaz that DNA reports like the one at issue here are

“testimonial statements,” and so a defendant has a Sixth

Amendment right to confront in open court whoever carried

MERAS v. SISTO 4329

out the test, arrived at the result, and prepared the report prof-

fered as proof of the test and its result. That does not end the

matter, though. Were we reviewing this case de novo, we

would be faced with two additional, difficult questions

because there are two exceptions to the strict requirements of

the Confrontation Clause that may be applicable here. I dis-

cuss them briefly only to signal that the questions are difficult

and unresolved, and that I therefore do not think we can con-

clude that Meras’s Confrontation rights “probably” were vio-

lated. I offer no answers to the questions.

First, the Supreme Court recognized an exception to the

general rule that a testimonial statement may not be admitted

into evidence absent the declarant’s availability for cross-

examination. Crawford v. Washington, 541 U.S. 36, 54

(2004). The exception applies where the declarant is “unavail-

able to testify, and the defendant had a prior opportunity for

cross-examination.” Id. Because Lawson, the criminalist who

prepared the report, testified at Meras’s first trial, the second

prong of the exception has been met. The harder question is

whether Lawson was constitutionally “unavailable” for pur-

poses of the Sixth Amendment because she went to visit her

dying mother in the hospital rather than testify a second time

—at least, that is what an unsworn, uncross-examined prose-

cutor said in court.

The question is hard for two reasons. First, the Supreme

Court has rarely addressed what it means to be “unavailable”

for Confrontation Clause purposes. In the few cases it has

squarely answered this question, it has articulated a standard:

the prosecution must show it made a “good-faith effort” to

secure the testimony of a witness. See Ohio v. Roberts, 448

U.S. 56, 75 (1980). With the exception of one recent case

applying AEDPA’s deferential standard of review,1 the Court

1

See Hardy v. Cross, 132 S. Ct. 490 (2011) (per curiam). Because of the

deferential standard of review the Court applied in that case, it did not go

into the specifics of what constitutes a “good-faith effort” for purposes of

the “unavailability” doctrine.

4330 MERAS v. SISTO

has not revisited the standard for constitutional unavailability

in the wake of the change in Sixth Amendment doctrine

brought about by Crawford. Further, the Court’s primary “un-

availability” cases have not addressed a case quite like this,

where the absent witness’s appearance at the retrial had been

secured by the prosecution, but the witness then was absent

from court on the day of her scheduled testimony because of

a recent development: the hospitalization of the witness’s

mother.

The uncertain legal landscape is clouded by the incomplete

factual record presented in this appeal. Neither party focused

serious attention on the unavailability issue, so we know little

about the circumstances leading up to Lawson’s failure to tes-

tify. We have but one statement from the prosecutor that Law-

son was unavailable because her “mother has cancer and is

dying and had to be readmitted into the hospital.” Were this

statement the end of the matter, I admit the prosecution may

not have met its burden to show it made a “good-faith” effort

to secure Lawson’s appearance. Yet we do not have the entire

state court record on appeal. Were we actually addressing this

issue on de novo review, we would need to know more about

these circumstances to determine if this meets the test for con-

stitutional unavailability. Was Lawson’s mother in a hospital

out of town, or nearby? Did the prosecutor know about her

absence in advance? Did the prosecutor take any affirmative

steps to try to compel or coax Lawson to testify, or did he

quickly acquiesce and find Spriggs? How long would the trial

have to have been postponed to accommodate Lawson? We

do not know.

Second, and entirely independent of that question, Spriggs’

testimony may also fall under a specific “supervisor” excep-

tion to Crawford identified by Justice Sotomayor in her con-

currence in Bullcoming v. New Mexico, 131 S. Ct. 2705

(2011). In that case, the prosecution had introduced into evi-

dence the results of a blood test through the testimony of a

colleague of the actual analyst, and the colleague who testi-

MERAS v. SISTO 4331

fied “had neither observed nor reviewed [the primary

author’s] analysis.” Id. at 2712. The Court held this substitute

testimony of this colleague was not the equivalent of the

actual analyst’s for purposes of the Confrontation Clause. Id.

at 2710.

But Justice Sotomayor, who provided the fifth vote for the

majority and wrote a separate concurrence, specifically

observed that Bullcoming had a “limited reach” and was “not

a case in which the person testifying is a supervisor, reviewer,

or someone else with a personal, albeit limited, connection to

the scientific test at issue.” Id. at 2722 (Sotomayor, J., concur-

ring). Whether that person may be permitted to testify in place

of the report’s primary author under the Confrontation Clause

was therefore explicitly left open. Id.

Our case implicates that open question. Spriggs was Law-

son’s supervisor. She testified that she was “the one that tech-

nically reviewed the case notes for this case and signed as

technical reviewer.” Bullcoming did “not address what degree

of involvement [with a report’s preparation] is sufficient” to

allow a supervisor to testify in place of the primary author,

but Spriggs may have had enough involvement here to satisfy

the Confrontation Clause. Id. at 2722; see also Op. 4327-28.

Again: we do not know. The issue is unresolved.

2.

Were we reviewing this case de novo, we would be forced

to answer those questions to determine if Meras’s Confronta-

tion Clause rights were violated. The ultimate resolution of

these legal questions will be important in the wake of Craw-

ford, a “landmark decision” that drastically changed the land-

scape of the Confrontation Clause. Ocampo v. Vail, 649 F.3d

1098, 1107 (9th Cir. 2011). But, especially given the incom-

plete record on appeal, today is not the day to decide these

difficult questions, nor even to hint at their ultimate resolu-

tion. Congress has required us to decide this case under the

4332 MERAS v. SISTO

deferential standard created by AEDPA, whereby we deter-

mine whether the state court’s decision, at the time it was ren-

dered, “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States”—not whether it

was correct. 18 U.S.C. § 2254(d)(1). In habeas cases, just as

in every case we decide, we should remember the “cardinal

principle of judicial restraint”: “if it is not necessary to decide

more, it is necessary not to decide more.” PDK Labs., Inc. v.

DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concur-

ring in part and concurring in judgment).

To be sure, the majority does not explicitly “decide” these

questions, but rather it says that Meras’s Sixth Amendment

rights “probably” were violated. The trouble with saying this

in an opinion is that the Federal Reporter is not the same

thing as a law review. The latter, not the former, is the appro-

priate venue for speculation as to how hypothetical legal

questions would be resolved. After all, the majority’s state-

ment, in a published opinion, that Meras’s rights were “proba-

bly” violated will have ramifications in future cases that we

or other courts will have to decide some day. When that future

case is before a court, a nice quotation from a Ninth Circuit

opinion can provide powerful ammunition for lawyers, even

if the quotation is dicta. This is especially important to us

because dicta, in the Ninth Circuit, can have precedential

effects. See McOmie-Gray v. Bank of Am. Home Loans, 667

F.3d 1325, 1329 (9th Cir. 2012).2

2

Expressing an opinion on whether some action “probably” violated the

Constitution were there to be a de novo review could even affect the out-

come of future § 1983 actions. Our case likely will not have such effects,

since prosecutors are absolutely immune from suit for their conduct “in

presenting the State’s case” in court. See Burns v. Reed, 500 U.S. 478, 486

(1991). However, if our court were to get into the business of saying what

we thought of the de novo merits of every AEDPA case, that could affect

a subsequent decision addressing whether a right was “clearly established”

for qualified immunity purposes. As the Supreme Court has said in the

context of evaluating § 1983 claims where defendants are entitled to

MERAS v. SISTO 4333

In sum, I fully agree that the California courts did not

unreasonably apply Sixth Amendment law here, and therefore

I concur in the judgment of the court to affirm denial of the

writ. I cannot agree, however, that we should express any

opinion at all on the unresolved questions that are also

addressed by the majority.

qualified immunity, venturing an opinion on the de novo merits when

doing so is not necessary to the ultimate disposition “comes at a price”:

the “substantial expenditure of scarce judicial resources on difficult ques-

tions that have no effect on the outcome of the case” and the “risk of bad

decisionmaking.” Pearson v. Callahan, 555 U.S. 223, 236, 239 (2009).