Opposition Brief — Fry v. Pliler

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No. 06-5247

IN THE SUPREME COURT OF THE UNITED STATES

JOHN FRANCIS FRY,

Petitioner,

v.

CHERYL K. PLILER, Warden,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

' CIRCUIT

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BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

; MARY JO GRAVES

tS Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Solicitor General

PEGGY S. RUFFRA

Supervising Deputy Attorney General

f

ROSS C. moopy “>

Deputy Attorney General

Counsel of Record

455 Golden Gate Avenue, Suite 11000

g San Francisco, CA 94102-7004

% Telephone: (415) 703-1376

s Fax: (415) 703-1234 RECEIVED

Counsel for Respondent

OCT 3.0 2006

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QUESTIONS PRESENTED

1. Is the exclusion of reliable evidence of third party

culpability subject to harmless error analysis?

2. Should this case be remanded to the Ninth Circuit for

reconsideration in light of Holmes v. South Carolina, _ U.S.

__, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), and House v. Bell,

_ U.S. __, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)?

3. Where constitutional error has not been analyzed for

harmlessness on direct review, does Chapman v. California, 386

U.S. 18 (1967) or Brecht v. Abrahamson, 507 U.S. 619 (1993)

apply in federal habeas corpus proceedings? Who bears the

burden of persuasion on the issue of prejudice?

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STATEMENT OF THE CASE

REASONS FOR DENYING PETITION

CONCLUSION

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Cases

Adarand Constructors, Inc. v. Mineta

534 U.S. 103 (2001)

Allen v. Woodford

366 F.3d 823 (9th Cir. 2004)

Bains v. Cambra

204 F.3d 964 (9th Cir. 2000)

Barrett v. Acevedo

169 F.3d 1155 (8th Cir. 1999)

Brecht v. Abrahamson

507 U.S. 619 (1993)

Chambers v. Mississippi

410 U.S. 284 (1973)

Chapman v. California

386 U.S. 18 (1967)

Clark v. Arizona

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126 S.Ct. 2709

165 L.Ed.2d 842 (2006)

Crane v. Kentucky

476 U.S. 683 (1986)

Delaware v. Van Arsdall

475 U.S. 673 (1986)

Hassine v. Zimmerman

160 F.3d 941 (3rd Cir. 1998)

Herrera v. Collins

506 U.S. 390 (1993)

Holmes v. South Carolina

U.S.

126 S.Ct. 1727

164 L.Ed.2d 503 (2006)

aly ote Aen © xed

TABLE OF AUTHORITIES

House v>, Bell

3 MR be

126 S.Ct. 2064

165 L.Ed.2d 1 (2006)

Juarez v. Minnesota

217 F.3d 1014 (8th Cir. 2000)

Lawrence v. Chater

516 U.S. 163 (1996)

Montana v. Egelhoff

518 U.S. 37 (1996)

Penry v. Johnson

532 U.S. 782 (2001)

Santa-Madera v. United States

260 F.3d 133 (2nd Cir. 2001)

Washington v. Recuenco

U.S.

126 S.Ct. 2546 (June 26, 2006)

Statutes

California Evidence Code

§ 352

United States Code, Title 28

§ 2254

(continued)

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IN THE SUPREME COURT OF THE UNITED STATES

No. 06-5247

Petitioner,

Respondent.

STATEMENT OF THE CASE

Petitioner John Francis Fry was convicted of the first

degree murders of Cynthia and James Bell, and was sentenced to

life in prison without the possibility of parole. The case

against petitioner included ballistics evidence linking his

pistol to the murders, his prior threats to kill Cynthia Bell,

his truck being seen at the crime scene, and his flight to

avoid arrest. Several witnesses also testified that after the

killings petitioner returned home covered with blood, and that

he admitted shooting the victims.

At trial, petitioner contended that another man,

Anthony Hurtz, had confessed to committing the crimes.

Petitioner introduced evidence of Hurtz’s confessions through

seven witnesses. Hurtz testified and denied any involvement

in the murders. Testimony from an eighth witness, Pamela

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Maples, who also reportedly overheard Hurtz confess, was

excluded on foundational grounds. On appeal, petitioner

argued that the exclusion of Maples’s testimony was erroneous.

His convictions were affirmed by the California Court of

Appeal. It found that the exclusion of Maples’s testimony did

not violate state law, and that “no possible prejudice” to

petitioner resulted because “very similar testimony” presented

by the other witnesses made Maples’s testimony “merely

cumulative.” Pet. App. l13la. The state opinion does not

refer to the standard for harmless error established in

Chapman v. California, 386 U.S. 18 (1967).

On August 15, 2001, petitioner filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the

Eastern District of California. The District Court denied the

petition in an unpublished order. The District Court adopted

a magistrate judge’s finding that, although the exclusion of

Maples’s testimony violated petitioner’s constitutional rights

and was an unreasonable application of Chambers vv.

Miss .ssippi, 410 U.S. 284 (1973), the exclusion was harmless.

It applied the “substantial and injurious effect or influence”

Standard articulated in Brecht v. Abrahamson, 507 U.S. 619,

623 (1993). Pet. App. at 54a. The District Court reasoned

that the jury had heard testimony from many other witnesses

regarding Hurtz’s purportedly self-confessed involvement in

the killings, and that the exclusion of Maples’s testimony to

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effect on the verdict. Pet. App. at 54a-55a.

The Ninth Circuit affirmed the District Court in an

unpublished 2-1 decision. The Ninth Circuit concluded that

although the state court had erroneously excluded reliable

evidence of a third party’s confession to the crime, the error

was harmless under Brecht. Pet. App. 2a-3a. In a dissent,

Judge Rawlinson concluded that the exclusion of Maples’s

testimony was prejudicial under Brecht. Pet. App. 4a-5Sa. A

petition for rehearing en banc was denied. Pet. App. 6a.

REASONS FOR DENYING PETITION

Certiorari should be denied because the petition seeks

review of the circuit court’s application of a settled rule of

law to petitioner’s case. The petition suggests no basis to

conclude that the rule is the subject of an important dispute

among the nation’s courts. Moreover, this is not an

appropriate vehicle for reaching the issues presented by the

petition.

ae Petitioner suggests that the exclusion of

“reliable” evidence of third party culpability is structural

error. That argument is incorrect. This Court recently

reconfirmed the limited class of cases which are not subject

to harmless error analysis:

We have repeatedly recognized that the commission

of a constitutional error at trial alone does not

entitle a defendant to automatic reversal. Instead,

“*most constitutional errors can be harmless.’ “” Neder

v. United States, 527 9.3. 1, 8, ‘119 S.Ct. 1827, 144 2

_—

U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

“*({IJ£ the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption

that any other [constitutional] errors that may have

occurred are subject to harmless-error analysis.’ “ 527

U.S., at 8, 119 S.Ct. 1827 (quoting Rose v. Clark, 478

U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)).

Only in rare cases has this Court held that an error is

structural, and thus requires automatic reversal. In

such cases, the error “necessarily render[s] a criminal

trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” Neder, supra, at 9,

119 S.Ct. 1827 (emphasis omitted).

Washington v. Recuenco, _ U.S. _, 126 S.Ct. 2546, 2551 (June

26, 2006) (footnote omitted). An “erroneous ruling of the

trial court [excluding defense evidence] is subject to

harmless error analysis.” Crane v. Kentucky, 476 U.S. 683,

691 (1986). Even where a defendant’s constitutional rights

are violated due to exclusion of “crucial” defense impeachment

evidence, reversal is not compelled, and prejudice must be

demonstrated. Delaware v. Van Arsdall, 475 U.S. 673, 683-84

(1986). Thus, the Court has clearly established that

erroneous exclusion of evidence may be found harmless, and

petitioner’s suggestion to the contrary must be rejected.

2. This Court’s recent decisions addressing third party

culpability evidence do not justify the granting of

certiorari. Petitioner suggests that, in light of Holmes v.

South Carolina, _ U.S. _, 126 S.Ct. 1727, 164 L.Ed.2d 503

(2006), and House v. Bell, _ U.S. _, 126 S.Ct. 2064, 165

L.Ed.2d 1 (2006), this Court should grant the writ of

certiorari, vacate the judgment, and remand to the Ninth

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Circuit. Pet. at 21. This Court has held that a GVR order is

“potentially appropriate” where “intervening developments, or

recent developments that we have reason to believe the court

below did not fully consider, reveal a reasonable probability

that the decision below rests upon a premise that the lower

court would reject if given the opportunity for further

consideration... .” Lawrence v. Chater, 516 U.S. 163, 167

(1996) (per curiam). Neither Holmes nor House, however,

establish principles which create the conditions necessitating

a remand to the Ninth Circuit in petitioner’s case.

In Holmes, this Court reaffirmed that a state may

exclude third party culpability evidence under the “widely

accepted” evidentiary rules which focus on probative value

versus “other factors such as unfair prejudice, confusion of

the issues, or potential to mislead the jury.” 126 S.Ct. at

1732-33. (Petitioner’s evidence was excluded under such a

rule. See Pet. App. l3la (citing Cal. Evid. Code §352).)

Holmes does not imply that the exclusion of reliable third

party evidence cannot “be treated as harmless” as claimed by

petitioner. Pet. at 14. Rather, Holmes rejected the rule

followed in South Carolina that arbitrarily excluded third

party culpability evidence regardless of its probative value,

or of the possible adverse effect of admitting the defense

evidence, 30 long as there was strong evidence of guilt. 126

S.Ct. at 1734-35. Holmes does not imply that all reliable

at

third party culpability evidence must be admitted much less

that its erroneous exclusion can never be harmless. A

defendant does not have a right to present even “crucial,

relevant evidence” where there is a “valid state

justification” for its exclusion. Montana v. Egelhoff, 518

U.S. 37, 53 (1996). Indeed, this Court has expressly

recognized that “relevant evidence can be curtailed if there

is a good reason for doing that,” such as evidentiary rules

like California’s Evidence Code section 352 that weigh the

probative value against “‘confusion of the issues, or

potential to mislead the jury.’” Clark v. Arizona, __ U.S.

_.1 126 S.Ct. 2709, 2731-32, 165 L.Ed.2d 842 (2006), quoting

Holmes.

In House, the Court discussed the weight to be given to

the testimony of two witnesses who testified to hearing the

confessions of a third party to the crime at issue. This

Court distinguished the testimony of these lay witnesses from

the “sort of eleventh-hour affidavit vouching for a defendant

and incriminating a conveniently absent suspect” which are

“*not uncommon’ in capital cases.” 126 S.Ct. at 2085 quoting

Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J.,

conc.). House involved “an alleged spontaneous statement

recounted by two eyewitnesses with no evident motive to lie.

For this reason, it [had] more probative value than, for

example, incriminating testimony from inmates, suspects, or

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friends or relations of the accused.” 126 S.Ct. at 2085.

Petitioner suggests that House’s statement about the relative

value of an unbiased witness’s testimony justifies a GVR

order. Pet. at 18, 20-21. Not so.

Maples’s lack of bias was a given in the lower courts.

The District Court characterized Maples as “the only third

party culpability witness who had no apparent bias.” Pet.

App. 52a. The dissenting panel member characterized Maples as

the “only unbiased witness presented by either side.” Pet.

App. 4a. Nonetheless, both the District Court and Ninth

Circuit found that since the jury had heard seven other

witnesses provide testimony similar to Maples’s proffered

testimony, the error was harmless. There is no reason to

believe that the Ninth Circuit would reconsider that decision

based on the cited passage from House. That case, like

Holmes, does not address harmless error analysis.

3. Petitioner mistakenly suggests that a significant

split exists in the circuits regarding the applicable harmless

error test on federal habeas corpus where a constitutional

error has not been found harmless beyond a reasonable doubt on

direct review. Pet. at p. 15. Petitioner acknowledges that

the Third, Fourth, Fifth, Seventh, Tenth and Eleventh Circuits

have held that “Brecht, rather than Chapman, enunciates the

appropriate standard for determining whether a constitutional

error was harmless in a federal habeas challenge to a state

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the state courts.” Pet. at 15, quoting Hassine v. Zimmerman,

160 F.3d 941, 950 (3rd Cir. 1998). Petitioner maintains that

the Second and Ninth Circuits have expressed doubts regarding

the proper standard to apply, while the Eighth Circuit has

indicated that the Chapman test is to be employed. Pet. at

15, citing Santa-Madera v. United States, 260 F.3d 133, 140

(2nd Cir. 2001); Allen v. Woodford, 366 F.3d 823, 857, n.6

(9th Cir. 2004); and Barrett v. Acevedo, 169 F.3d 1155, 1164

(8th Cir. 1999).

There is not a substantial conflict in the circuits

which justifies a writ of certiorari. In 2005, the Second

Circuit acknowledged that, while it had “previously reserved

the question” regarding the appropriate standard of review in

a case where Chapman was not applied in the state court, “the

Supreme Court, in dicta in Penry v. Johnson, 532 U.S. 782,

795-96 (2001) has applied the standard elaborated in Brecht

-.” Likewise, the Ninth Circuit, in Bains v. Cambra, 204

F.3d 964, 976 (9th Cir. 2000), announced that it would “join

the vast majority of our sister circuits” and apply Brecht,

and not Chapman, in all habeas cases.

The Eighth Circuit alone continues to assert that the

Chapmen standard is ever appropriate on habeas corpus. But

even that court now acknowledges Chapman is “generally

inapplicable” to collateral review, notwithstanding its use of

Chapman instead of Brecht if the state court has not conducted

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harmless error review. Juarez v. Minnesota, 217 F.3d 1014,

1017 (8th Cir. 2000).

Significantly, the Fighth Circuit has not revisited the

issue since Penry, which applied Brecht in a case where the

state court found no error. Any conflict is minor, as the

Eighth Circuit may well reverse itself in light of Penry.

Since there is no pressing need to resolve this issue of

harmless error review, a decision by the Court at this

juncture appears unnecessary.

4. This case involves a fact-specific inquiry. In the

Ninth Circuit, petitioner conceded that “consideration of the

issues in this case requires the consideration of many, many

| facts.” App. Opening. Br., 04-16876, at 37. The petition for

certiorari characterizes the case as “unprecedented.” Pet. at

12. Fur*’ier review of this fact-bound case is not warranted.

| Moreover, the decision is unpublished, non-precedential, and

‘ hence unlikely to affect the development of the law.

~ The petition suggests this Court should address the

issue of who bears the burden of persuasion on the question of

prejudice. Pet. at 24. Petitioner concedes that this issue

“is not addressed in the Ninth Circuit’s opinion” below. Pet.

at 25. Since that issue was not decided by the Court of

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Appeals, certiorari is not appropriate. See Adarand

Constructors, Inc. v. Mineta, 534 U.S. 103, 109 (2001) (per

“a curiam) (“We ordinarily do not decide in the first instance

a

issues not decided below” nterr quo: or : 4). —

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For the reasons stated, the petition for writ

certiorari should be denied.

Dated: October 26, 2006

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

MARY JO GRAVES

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Solicitor General

PEGGY S. RUFFRA

Supervising Deputy Attorney General

SEC. 185

ROSS C. MOODY

Deputy Attorney General

Counsel of Record

Counsel for Respondent

SF2006402523

20065687.wpd

No. 06-5247

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN FRANCIS FRY, Petitioner

v.

CHERYL K. PLILER, Respondent

CERTIFICATE OF SERVICE BY MAIL

I, ROSS C. MOODY, a member of the Bar of this Court, hereby certify that on

this October 26, 2006, one copy of the Brief In Opposition To Petition For Writ of Certiorari

in the above-entitled case was mailed, first class postage prepaid to

Victor S. Haltom

Attorney at Law

428 J Street, Suite 350

Sacramento, CA 95814

Counsel for Petitioner

I further certify that all parties required to be served have been served.

fA ©

ROSS C. MOODY

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(Tel: (415) 703-5994)

Counsel for Respondent