Petition for Writ of Certiorari — Murdoch v. Castro
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IN THEIL:
Supreme Court of the Gnited States
CHARLES FRANKLIN MURDOCH, JR...
Petitioner,
ROY CASTRO, WARDEN, AND
KDMUND G. BROWN, JR., ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA,
Respondents
On Petition For Writ of Certiorari
To The United States Court Of Appeals
for The Ninth Crreuit
PETITION FOR WRIT OF CERTIORARI
STEVEN M. KLEPPER* SEYMOUR |. AMSTER
KRAMON & GRAHAM, PLA LAW OFFICES OF SEYMOUK I
ONE SOUTH STREET AMSTER
SUITE 2600 6420 VAN NUYS BOULEVARD
BALTIMORE, MARYLAND SUITE 300
21202 VAN NUYS, CALIFORNIA
(410) 752-6030 QAO
sklepper@kg-law.com (818) 947-0104
* Counsel of Record AttyAmster@aol.com
COUNSEL FOR PETITIONER
QUESTIONS PRESENTED
In /larrington v. Richter (No. 09-587), argued
October 12, 2010, this Court requested that the
parties bnef and argue the question of whether
AKDPA deference applies to a state court’s summary
disposition of a claim. Regardless of how this Court
resolves Aichter, Petitioner requests certiorari
whether to address a division of authority that hkely
will remain unresolved, or at least to summanily
vacate and remand for further consideration
Petitioner independently seeks certrorart with
respect to the Ninth Circuit's holding, following
Kighth Circuit cases, that this Court has opened the
B I
door to state law pnivileges) trumping — the
Confrontation Clause of the Sixth Amendment. The
questions are as follows:
1. Does AEDPA deference apply to a state court
opinion addressing only the petitioner's state law
claims, without mention of the petitioner's Federal
law claims, including claims under the
Confrontation Clause of the Sixth Amendment?
2. Did Swidler & Berlin v. United States, 524
U.S. 399, 118 S. Ct. 2081, 141 L. Md. 2d 379 (1998),
abrogate this Court’s Confrontation Clause decisions
holding that only an accuser’s Fifth Amendment
privilege against. selffincrimination can bar cross
examination regarding matters relevant to the
)
accuser’s bias? If not, is Petitioner entitled to a writ
of habeas corpus?
PARTIES TO THE PROCEEDING
Che parti to this proceeding are Pet
Charles Franklin Murdoch I) ind Respondent
MHdmund G. Brown, Ji \ttorney General of tl!
state of California, and Roy Cast: Ward
TABLE OF CONTENTS
Pape
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING 1
TABLE OF CONTENTS 1)
TABLE OF AUTHORITIES vi
OPINIONS BELOW
JURISDICTION
PERTINENT CONSTITUTIONAL AND
STATUTORY PROVISIONS
STATEMENT OF THE CASE
\. Murdoch's Conviction
8. State Appeals 6
C. Proceedings Below
REASONS FOR GRANTING THE PETITION ~
| AKDPA DEFERENCE CANNOT
\PPLY WHERE CIRCUMSTANCES
DEMONSTRATE THAT THE STATE
COURT OVERLOOKED THE
KFEDERAL CLAIM S
A. This Case Has Created a Circuit
Spht That Would Remain If the
Court Rules for the State in AycArer S
B. The Cahfornia Courts Overlooked
Murdoch’s Federal Claim 1O
TABLE OF CONTENTS (Continued)
Page
C. Ifthe Court Rules Against the State
on “Silent Denial’ Grounds | in
Richter, Vhis Case Provides’ an
Opportunity for a Broader Ruling.......... 13
D. If the Court Rules More Broadly
Against the State in AcAter,
Summary Rehefon Certiorari Is
PENI pac coon ea acasakcsanivon: eres LS
Il ON THE MERITS, HABEAS RELIEF
IS WARRANTED BECAUSE ‘THE
SUPERIOR COURT IMPROPERLY
LIMITED MURDOCH'S CROSS-
MHAAMINATION OF HIS ACCUSER........... 16
A. This Court's Pre- 1998 Precedents Do
Not Permit State Law Exceptions to
the Confrontation Clause ....................... pee
B. The Ninth Circuit Misread Swid/er..... = ao
C. Murdoch Is Entitled to a Writ of
aepens COTnus:......5....0..... ee eee ns ee
CONCLUSION ........ ener . ae
APPENDIX
United States Court of Appeals for the
Ninth = Circuit, Plurality Opinion
(Tashima, J.), dated June 21, 2010.............. App. 1
United States Court of Appeals for the
Ninth Cireuit, Concurring Opinion
(Silverman, J.), dated June 21, 2010 App. 29
~~ j
TABLE OF AUTHORITIES (Continued)
Gigho v. United States, 405 U.S. 150, 92S
Ct. 763, 31 L. Ed. 2d 104 (1972)
Johnson v. Norris, 537 F.3d 840 (8th Cir
>). ) ie
Lyell v. Renico, 470 F.3d 1177 (6th Cir.
2006)
Newton v. Kemna, 354 F.3d 776 (8th Cir
2004) .
Norde v. Keane. 294 F.3d 401 (2d Cn
2002)
Olden v. Kentucky, 488 U.S. 227, 109 S.
Ct. 480, 102 L. Ed. 2d 513 (1988) ...
Pennsylvania v. Ritchie, 480 U.S. 39, 107
S. Ct. 989, 94 L. Ed. 2d 40 (1987)..........
People v. Mincey, 827 P.2d 388 (Cal. 1992)
People v. Willams, 98 Cal. Rptr. 3d 770
(Ct. App. 2009) .
Romptilla v. Beard, 545 U.S. 374, 125 S. Ct
2456, 162 L. Ed. 2d 360 (2005) ......
Shelton v. Purkett, 563 F.3d 404 (8th Cir
2009)
Smith v. Illrnors, 390 U.S. 129. 8
748, 19 L. Ed. 2d 956 (1968) ..............
OO
N
|
rs
Swidler & Berlin v. United States. 524
U.S. 399, 118 S. Ct. 2081. 141 L. Ed. 2d
379 (1998)
+ >s)
a ))
.passim
passim
vil
TABLE OF AUTHORITIES (Continued)
Vela v. Superior Court, 255 Cal. Rptr. 921
(Ct. Apo. 1OOS? ...2..iiciccneeee
Weeks v. Angelone, 528 U.S. 225, 120 S.
Ct. 727, 145 L. Ed. 2d 727 (2000) ..............
Whorton v. Bockting, 549 U.S. 406, 127 S.
Ct. 1173, 167 L. Bd. 2d 2 GOOG)
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2009)...................
Willams v. Taylor, 529 U.S. 420, 120S. Ct.
1479, 146 L. Ed. 2d 435 (2000) .....0..0...00....
Yist v. Nunnemaker, 501 U.S. 797, 1111S.
Ct. 2590, 115 L. Ed. 2d 706 (1991) ............
STATUTES AND RULES
28 U.S.C. § 1266 oooceser
28 U.S.C. § 2256 vocccceccoseinscissae oe
Fed. KR. Bivic. GOS o5ciitsiececs suet
OTHER AUTHORITIES
Martha Dragich Pearson, Citation of
Unpublished Opinions as Precedent, 55
Hastings L.J. 1235 (May 2004)..................
Charles Alan Wright et al., 23 Fed. Prac. &
Proc. Evid. §§ 5426 to 5431 (supp. 2010)...
Seneenes 23
ee a
buenas 20
peewee 24
PETITION FOR CERTIORARI
Charles Franklin Murdoch, Jr. respectfully
petitions ior a writ of certiorari: to review the
judgment of the Ninth Circuit
OPINIONS BELOW
The plurality, concurring, and two dissenting
opinions of the en banc Ninth Circuit are reported at
609 F.3d 983 (Murdoch II) and reprinted herein at
App. 1, 29, 31, and 68. The 2004 panel opinion of the
Ninth Circuit is reported at 365 F.3d 699 (Murdoch
J). The 2007 panel decision of the Ninth Circuit is
reported at 489 F.3d 1063 (Murdoch //). The 2008
order granting en banc rehearing is reported at 546
F.3d 1051. The pertinent District Court opinion and
order are unreported and reprinted herein at App
69 and App. 96
Also reprinted herein are the March 26, 1998
unreported opinion of the California Court of Appeal
denying Murdoch's appeal and petition (App. 98) and
the July 8, 1998 order of the California Supreme
Court denying review (App. 135).
JURISDICTION
The Ninth Circuit issued its en banc decision on
June 21, 2010. On August 17, 2010, this Court
(KENNEDY, J.) extended until October 19, 2010 the
time for Murdoch to petition for certiorari. Murdoch
invokes this Court's jurisdiction under 28 U.S.C. §
1254(1)
2
PERTINENT CONSTITUTIONAL
AND STATUTORY PROVISIONS
The Sixth Amendment's Confrontation Clause
provides that, “liJn all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted
with the witnesses against him.”
The Supremacy Clause of Article VI provides that
the “Constitution ... shall be the supreme Law of
the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
The Antiterrorism and Effective Death Penalty
Act (““AEDPA”), 28 U.S.C. § 2254, provides in
relevant part:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim—
(1) 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; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in lhght of the evidence presented in
the State court proceeding.
3
STATEMENT OF THE CASE
The Ninth Circuit has split from at least four
other Circuits, becoming the first to find that a
reasoned state court opinion, which overlooks rather
than decides a Federal claim, is entitled to AEDPA
deference. Such a ruling has no grounding in the
language of AEDPA or in the principles of federalism
underlying that statute. The Court should grant
certiorari to resolve this division of authority.
On the merits, the Ninth Circuit, joining the
Eighth Circuit, read this Court’s 1998 decision in
Swidler as opening the door to state law privileges
trumping the Federal right to cross-examine one’s
accuser on subjects relevant to impeachment. Under
this reasoning, AEDPA gives state courts virtually
unchecked discretion to invoke state law privileges
to hmit cross-examination of an accuser. The Eighth
and Ninth Circuits misread Swid/er, a non
constitutional decision, and are irreconcilable with
this Court’s Confrontation Clause decisions and the
Supremacy Clause. Federalism means that Federal
courts must give due respect to state courts; it does
not mean that state law preerpts Federal rights.
As set forth in this petition, Murdoch is entitled
to a writ of habeas corpus and a new trial.
A. Murdoch’s Conviction
On May 17, 1983, four men robbed the Horseshoe
Bar in Long Beach, California. During the course of
the robbery, one bystander was shot and killed;
another was stabbed and severely wounded. The
robbers left behind a fingerprint. The crime went
unsolved until 11 years later, when advances in
fingerprint technology enabled police to identify
Dino Dinardo as one of the perpetrators.
Officers arrested Dinardo on June 30, 1994.
Dinardo initially denied any involvement in the
crime, but he later recanted and admitted his
involvement. Ile identified Murdoch as one of his
accomplices. The State charged both Dinardo and
Murdoch with murder in the Los Angeles County
Superior Court.
The State tried Dinardo first. At a suppression
hearing, Dinardo tes tified that his confession had
been coerced, and that he had given the confession in
exchange for a promise that he would be released to
see his wife and daughter. Dinardo was convicted
and was sentenced to imprisonment of 25 years to
life.
At sentencing, the Superior Court expressed
doubt that the State could convict Murdoch without
Dinardo’s testimony, while noting the court's
discretion to reduce Dinardo’s sentence. In return
for Dinardo’s agreement to testify against Murdoch,
Dinardo received a reduction of his conviction to
voluntary manslaughter and a reduced sentence of
12 years’ imprisonment.
Dinardo was a key witness at Murdoch’s trial. He
testified that he and Murdoch, together with two
other men, robbed the Horseshoe Bar. According to
Dinardo, Murdoch carried a .22 caliber rifle and
While Dinardo was
fumbling with the buttons on the cash repister, he
heard a gunshot, emptied the register, and ran out
”?
announced, “This is a stick up.
the back door, joining the other two men in the
vetaway car, with Murdoch joining them about a
minute later. Dinardo recalled seeing Murdoch in
possession of the rifle both in the bar and in the car
During trial, the prosecutor informed the
Superior Court of the existence of a letter from
Dinardo to his former counsel! stating that the police
coerced him into impheating Murdoch in the crime
That letter (as the record in this action reveals)
stated approximately as follows
| would hke to make a statement about
the facts surrounding my arrest for
robbery and murder. | was taking care
of my young daughter when Long Beach
police arrested me at my home in
Berkeley Two policemen, Detective
Pavek and his partner, took me to the
Berkeley Police Department and
interviewed me. I wanted to get back to
my daughter as | worried about her
welfare. At that time, Detective Pavek
coerced a statement from me_= and
promised not to charge me if I made a
statement that Charles Murdoch
participated in the crime. But, I do not
actually know Mr. Murdoch, although |
know his brother. Mr. Murdoch and |
did not commit any crime
Upon objection by Dinardo’s then-counsel, the
Superior Court concluded that the letter was
protected by the attorney-chent privilege, and it
ruled that Murdoch could not use the letter t
©
impeach Dinardo on cross‘examination. Murdoch
was convicted of first-degree murder and received a
sentence of hfe imprisonment without parole.
B. State Appeals
Murdoch filed a direct appeal to the California
Second District Court’ of Appeal and also filed a
habeas corpus petition with the same court. [is
bref raised cleven arguments. The first ten were
objections under California law. The eleventh raised
objections under the United States Constitution:
Xl. EVEN [F DINARDO'’S) LETTER
WERE PRIVILEGED, APPELLANT'S
OTH AND GOTH AMENDMENT
RIGHTS TO A FAIR TRIAL AND TO
CONFRONT AND CROSS-EXAMINE
THE CHIEF WITNESS AGAINST HIM
WOULD TAKE PRECKEDENCKE OVER
DINARDO'S ATTORNEY-CLIENT
PRIVILEGE UNDER THE
PARTICULAR FACTS OF THIS CASH
On March 26, 1998, the Court of Appeal dented
Murdoch’s direct appeal and habeas petition in a 26°
page unpublished opinion. The opimon thoroughly
addressed Murdoch's ten state law claims.
But the Court of Appeal counted only to ten, not
eleven. It never mentioned Murdoch's Federal claim
or the Sixth Amendment. App. 105-133. The Court
of Appeal affirmed Murdoch's life sentence
Murdoch petitioned to the California Supreme
Court, which summarily denied review on July 8,
1998. App. 135.
C. Proceedings Below
On July 6, 1999, Murdoch petitioned the United
States District Court for the Central District of
Cahforma for a writ of habeas corpus. The District
Court demed the petition on March 7, 2002
On April 5, 2004, the Ninth Circuit held in
Murdoch I that AIEDPA deference did not apply. It
vacated and remanded with instructions for the
District Court to obtain Dinardo's letter and to
review Murdoch's Confrontation Clause claim on the
merits.
The District Court, finding that the constitutional
error was harmless, again denied the petition on
April 7, 2005. App. 96. On June 12, 2007, a divided
three-judge panel of the Ninth Circuit: affirmed in
Murdoch 11
On October 9, 2008, the Ninth Circuit) vranted
Murdoch's petition for rehearing en bane. On June
21, 2010, in Alurdoch /11 , a divided 11-judge Ninth
Circuit panel overruled Afurdoch J, held that AE DPA
deference appled, and affirmed the denial of the
writ
REASONS FOR GRANTING THE PETITION
| AEDPA DEFERENCE CANNOT APPLY
WHERE CIRCUMSTANCES DEMONSTRATE
THAT THE STATE COURT OVERLOOKED
THE FEDERAL CLAIM
\. This Case Has Created a Circuit Split That
Would Remain If the Court Rules for the State
in /tichter
The Ninth Circuit has “become the only court in
the country to hold that a state court may adjudicate
a constitutional claim ‘on the merits’ by overlooking
it, and then have its carelessness rewarded with
AEDPA’s presumption that its adjudication was good
enough for government work.” App. 60 (Sozinski
C.J... dissentiny)
It is not unusual for a state court to issue a
reasoned decision that fails to mention a lederal
constitutional challenge See, eg. Danner 3
Kentucky, 525 U.S. 1010, 119 S. Ct. 529, 529, 142 1
Md. 2d 439 (1998) (SCALIA, J., dissenting from
demial of certiorari) (Although petitioner objected
that this procedure violated his constitutional right
to confront his accuser, neither the trial court nor
the [Kentucky] Supreme Court so muchas
7
mentioned the Sixth Amendment
Until this case, the authorities were unanimous
that AK DPA deference is not warranted in such a
situation. ShAe/ton v. Purkett, 563 F.3d 404, 409 (8th
Cir. 2009); Lyell vo. Renico, 470 F.3d 1177, 1182 (6th
Cir. 2006); Canaan vo. Mebride, 3895 F.3d 3876, 382
(7th Cir. 2005): Norde v. Neane, 294 F.3d 401, 410
(2d Cir. 2002)
This division of authority would not disappear if
the Court were to hold in Aichter that summary
dispositions are adjudications on the merits. Even in
the Circuits that afford AEDPA_ deference — to
summary adjudications, de movo review ‘vovernts|
when the opinion of a state court reveals that it did
not adjudicate a claim.” Chadwick v. Janecka, 312
F.3d 597, 606 (3d Cir. 2002) (Alito, J.)
Although, for imstance, the Second Circuit
generally defers to summary dispositions, 1 apphes
a multi-factor test to determine whether ina
particular case the petitioner can estabhsh that the
Federal claim was not in fact: adjudicated on the
merits. Norde, 294 F.3d at 410. A reasoned decision
addressing only the petitioner’s state law challenges,
not his Federal claims, satisfies that burden. /a.
Such a distinction makes sense. In Archter, the
State and supporting amucr offer the federalism
based argument that State courts lack the time and
resources to issue a reasoned opinion in every case
But these considerations do not apply where —as in
Danner. Shelton, Lyell, Canaan, Norde, and this
case- the state court already took the time to reduce
its reasoning to a written opinion, which establishes
that the court overlooked the Federal claim
“AEDPA’s purpose [is] to further the principles of
comity, finality, and federalism.” Wi//ams v. Taylor,
529 U.S. 420, 436, 120 S. Ct. 1479, 146 L. Ed. 2d 435
(2000) (KENNEDY, J... AKEDPA therefore ensures
that state courts are the primary) forum for
LO
determining whether a state prosecution comported
with Federal law. ld. at 437-38. Where the
petitioner can establish that the state court failed
even to consider his Federal claim, it means that the
state court offered no forum at all.
B. The California Courts Overlooked Murdoch's
Federal Claim
Unhke in Arehter, which involved only an
unreasoned summary order, the record in this case
demonstrates the California courts’ reasoning. ‘The
petitioner in Achter originally filed his habeas
petition with the California Supreme Court, which
issued only the one-page summary order. By
contrast, Murdoch _ originally —_— petitioned the
California Court of Appeal, which issued a 26-page
opinion. Although the California Supreme Court did
not explain its denial of review, there is a rebuttable
presumption that the Cahforma Supreme Court
followed the reasoning of the opimon below. YJst v.
Nunnemaker, 501 U.S. 797, 803-06, 111 S. Cr. 2590,
115 L. Ed. 2d 706 (1991) (SCALIA, J.). This
presumption “looks through” to the “last reasoned
decision” of the California courts. /d. at 804. The
deference analysis therefore turns on whether the
Court of Appeal adjudicated Murdoch's’ Federal
claim on the merits.
The Court of Appeal’s 26-page opinion addressed
only Murdoch's state law claims on the merits. The
Ninth Circuit plurality conceded that the Court of
Appeal “did not mention the Confrontation Clause in
its opinion.” App. 16. All it found was a discussion
and quote “from the section of Murdoch’s brief in
which he raised the issue.” and a citation to a
that “dealt with the tension between the attor
chent privilege and the eg Clause
But the California Court of Appeal analyzed
arguments and authorities pes as they relat
state law privilege issues. App. 117-123. There
not even a boilerplate “catch-all” line to the eff
“we have considered Murdoch’s other argument:
reject them.” App. 38, 134
As Judge Kozinski’s dissent establishe:
explanation for the Court of Appeal’s failu
sustain Murdoch's Confrontation Clause object
clear It was an oversight Murdoch
precedents of the Supreme Court and the S
District Court of Appeal unambiguously holding
the attorney-chent privilege must yield t
Confrontation Clause if the material is probat
bias, including the behef that his «
testimony will result in a lenient sentence /
V
v. Mincey, 827 “ery 388, 422 (Cal. 1992) (colle
authorities); Vela v. Superior Court, 255 Cal.
921, 926 (Ct. App. 1989). This Confrontation C]
claim was Murdoch's eleventh enume
[tis not surprising that an unpublished opinion might
Winning argument. “[Ujnpublished opinions are rather
prepared, by law clerks or staff attorneys, with little ove:
by judges, and without attention to careful wording or p
e
future imphecations.”. Martha Dragich Pearson, (7rtaf
U/npublished Opinions as Precedent, 55 Hastings L.J
1302 (May 2004). California courts go so far as to p1
citation of unpublished Court of Appeal opinions, ext
narrow circumstances. Cal. R. Ct.. Rule 8.1115 [PJer
use of unpublished authority may be cause for sancet
People v. Wilhams, 98 Cal. Rptr. 3d 770. 777 (Ct. App. 2(
13
at issue in Aompilia and Beard, is a failure to
adjudicate a claim on the merits. The Second, Sixth,
Seventh, and Eighth Circuits have recognized this
fact. But the Ninth Circuit has made a new and
unjustified departure from the statute and this
Court's decisions.
Thus, even if the Court rules for the State in
Richter, this Court should grant certiorari to resolve
the division of authority that this case implicates.
C. If the Court Rules Against the State on “Silent
Denial” Grounds in Aichter, This Case
Provides an Opportunity for a Broader Ruling
The Court recognizes the need to clarify when a
claim was “adjudicated on the merits in State court
proceedings” under § 2254(d). In Harrington v.
Richter, 130 S. Ct. 1506, 176 L. Ed. 2d 108 (2010),
this Court sua sponte directed the parties to “bnef
and argue the following question: Does AEDPA
deference apply to a= state courts summary
disposition ofaclaim...?” /d. at 1506-07.
The Respondent's principal argument in Aychter
is that California law recognizes four types of
summary adjudications, and that the particular type
at issue—a “silent demial,” which occurs when a
majority of justices vote to deny the petition but
cannot agree whether the denial is on the merits or
on procedural grounds—1is not an adjudication on the
merits. If the Court decides Archter on this narrow
ground, certiorari will be necessary to address the
AEDPA deference issue in other contexts.
14
In such an event, this case would provide an
opportunity for the Court to issue a broader ruling.
At first blush, a case involving a 26-page state-court
opinion may not seem a good candidate for a ruling
on whether summary opinions are entitled to
deference. But, in granting deference in this case,
the Ninth Circuit treated the absence of analysis of
the Federal claim as a summary adjudication of that
claim: “[W]Jhen there is no reasoned state court
opinion explaining the denial of a defendant’s claim
in any respect, we must assume that the state court
has decided all the issues and perform an
independent review of the record to ascertain
whether the state court decision was objectively
reasonable.” App. 16.
This case highlights a fact strongly weighing
against AEDPA deference to summary dispositions:
judges are human beings who sometimes overlook
meritorious arguments. Ante § 1A. In such a case,
the state court has not served its AKDPA role as the
primary forum for constitutional challenges. Cases
like Murdoch’s, unlike cases involving one-page
orders, allow the petitioners to pull back the curtain
to reveal this unfortunate fact.
Perhaps the Court ultimately will find that, on
balance, the asserted benefits of deferring to
summary dispositions outweigh the costs. At the
very least, however, the Court should decide this
issue in a case that highlights the cost to individual
petitioners like Murdoch, whose constitutional
claims went unheard.
16
ll. ON THE MERITS, HABEAS RELIEF IS
WARRANTED BECAUSE THE SUPERIOR
COURT IMPROPERLY LIMITED MURDOCH'S
CROSS-EXAMINATION OF HIS ACCUSER
The Court separately can and should grant
certiorart on Murdoch’s substantive constitutional
challenge: that the Superior Court violated
Murdoch’s Confrontation Clause rights by barring
him from questioning Dinardo regarding the
exculpatory letter.
Because the Court of Appeal failed to adjudicate
this claim on the merits, § 2254(d) is inapplicable,
and de novo review applies. Supra § 1. But even if
this Court were to hold that AEDPA deference
applies, the California Court of Appeal’s denial of
relief nevertheless contravened, and involved an
unreasonable application of, this Court's precedents.
Since first holding that the Confrontation Clause
binds the states, this Court has consistently held
that a tnal court cannot bar inquiry into relevant
subjects of impeachment of an accuser, except to
protect another Federal right, the privilege against
self-incrimination. The Court has rejected state law
exceptions to this rule
But the Ninth Circuit has taken a different,
dangerous approach. Endorsing Eighth Circuit
decisions, the plurality held that AEDPA permits
any state law privilege to trump the Confrontation
Clause until this Court expressly rules otherwise
so long as the state can offer a “principled argument”
for why the privilege is more important than the
specific privileges at issue in this Court's precedents.
17
For the purposes of the Supremacy Clause,
however, all state law privileges are created equally.
If in conflict with a Federal constitutional right,
state law must yield. The Court should grant
certiorari to preserve the Supremacy Clause and the
Confrontation Clause in state prosecutions.
A. This Court’s Pre-1998 Precedents Do Not
Permit State Law Exceptions to _ the
Confrontation Clause
This Court first applied the Confrontation Clause
to the states in 1965. Douglas v. Alabama, 380 U.S.
415, 418, 85 S. Ct. 1074, 138 L. Ed. 2d 934 (1965).
Shortly thereafter, the Court reversed the conviction
of a defendant who “was denied the right to ask the
principal prosecution witness either his name or
where he lived, although the witness admitted that
the name he had first given was false.” Smith v.
[/linois, 390 U.S. 129, 131, 88S. Ct. 748, 19 L. Ed. 2d
956 (1968). “It is the essence of a fair trial that
reasonable latitude be given the cross-examiner.”
Id. at 132 (quoting A/ford v. United States, 282 U.S.
687, 692, 51 S. Ct. 218, 75 L. Ed. 624 (1931)).
“Prejudice ensues from a denial of the opportunity to
place the witness in his proper setting and put the
weight of his testimony and his credibility to a test,
without which the jury cannot fairly appraise them.”
Id. (quoting A/ford, 282 U.S. at 692).
Smith recognized only three restrictions that a
trial court could place on cross-examination of an
accuser. First, a trial court must protect the
accusers own properly invoked Fifth Amendment
privilege against self-incrimination. Second, a trial
18
court can prohibit cross-examination on irrelevant
subjects—that is, questions that merely harass,
annoy, or humiliate the witness. Third, within these
bounds, a trial court has discretion to determine the
manner of questioning, including discretion to decide
when defense counsel has exhausted questioning on
a relevant subject. Smith, 390 U.S. at 132-33
(quoting Alford, 282 U.S. at 694).
Since the 1960s, then, this Court’s Confrontation
Clause precedents have directed that “no obligation
is imposed on the [state] . . . to protect a witness
from being discredited on cross-examination, short of
an attempted invasion of his’ constitutional
protection from self inecrimination, — properly
invoked.” Smith, 390 U.S. at 132-33 (quoting A/ford,
282 U.S. at 694).
In 1974, this Court rejected a _ proposed
Confrontation Clause exception for Alaska’s
statutory privilege for juvenile convictions. In Davis
v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d
347 (1974), the trial court had granted a protective
order precluding the defense from questioning the
key prosecution eyewitness regarding a juvenile
conviction for burglary. This protective order
violated the Confrontation Clause, under which “the
cross-examiner 1S not only permitted to delve into
the witness’ story to test the witness’ perceptions
and memory, but the — cross-examiner has
traditionally been allowed to impeach, 1.e., discredit,
the witness.” /d. at 316. Notwithstanding the
state’s interest in protecting juveniles, this Court
reiterated that the Fifth Amendment privilege
1
against. self-incrimination was the only basis for
barring inquiry into a relevant subject matter on
cross-examination of an accuser. /d. at 320 (citing
Alford, 282 U.S. at 694).
This Court has never retreated from Smuth and
Davis or recognized additional exceptions (much less
state law exceptions) to the right of the accused to
cross-examine his accuser on relevant subjects.
Rather, the Court has rejected various subject-
matter restrictions on cross-examination of accusers.
Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480,
102 L. Ed. 2d 513 (1988) (potential that revealing
aceuser’s “interracial relationship would prejudice
the jury against her” did not fall within “reasonable
limits on defense counsel’s inquiry into the potential
bias of a prosecution,” where testimony on. that
subject matter directly attacked accuser’s
credibility); Delaware v. Van Arsdall, A75 U.S. 6738,
679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (‘the
trial court prohibited all inquiry into the possibility
that [the accuser] would be biased as a result of the
State’s dismissal of his pending public drunkenness
charge”); Chambers v. Mississippi, 410 U.S. 284,
295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)
(Confrontation Clause preempted “Mississippi
common-law rule that a party may not impeach his
own witness”).
The Ninth Circuit, after holding that § 2254(d)
apphed to this case, denied rehef because the
“relationship between the Confrontation Clause and
the attorney-chent privilege has not been clearly
established by the Supreme Court.” App. 27. This
20
reasoning is backwards. ‘The precedents of this
Court were clear in 1998, and remain clear, that the
only recognized exception to the Confrontation
Clause 1s another Federal constitutional right, the
rifth Amendment privilege against self
incrimination.
B. The Ninth Circuit Misread Swid/er
Notwithstanding the Supremacy Clause and this
Court’s precedents, the Ninth Circuit held that a
state law privilege could trump Murdoch’s rights
under the Confrontation Clause. This misconception
stems from a misreading of Swidler & Berlin vy.
United States, 524 U.S. 399, 118 S. Ct. 2081, 141 L.
Ed. 2d 379 (1998).
Swidler had nothing to do with the Confrontation
Clause. Rather, Swid/er involved a motion to quash
a grand jury subpoena, directed to a law firm,
secking privileged materials relevant to the
investigation of firings at the White House Travel
Office. The Court held that the attorney-chent
privilege under Fed. R. Evid. 501 survived the
suicide of the firm's chent, thus preventing
disclosure of notes of conversations with the chent.
regarding the firings. 524 U.S. at 401. Ina footnote,
the Court noted that the law firm, “while opposing
wholesale abrogation of the privilege in criminal
cases, concedeld] that exceptional circumstances
implicating a criminal defendant’s constitutional
rights might warrant breaching the privilege.” /d. at
409 n.3. But the Court declined to “reach this issue,
since such exceptional circumstances clearly are not
presented here.” /d.
a
Thus, both the petitioners and the respondent in
Swidler agreed that the notes might have’ been
discoverable if a criminal defendant's constitutional
rights were at stake. By its footnote, the Court
merely cautioned that it was not deciding anything
with respect to the apphleation of privilege if and
when the grand-jury investigation resulted in
indictments and trials. Such @ieta plays no part in
the AEDPA analysis. Carey v. Musladin, 549 U.S.
70, 74, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).
Nothing in this cautionary footnote suggests that the
Court was revisiting three decades of Confrontation
Clause jurisprudence.
Swid/er's holding as to pre indictment subpoenas
necessarily had no bearing on the Court’s precedents
regarding cross‘examination at trial. “Phe opimions
of this Court show that the right to confrontation 1s a
trial right, designed to prevent improper restrictions
on the types of questions that defense counsel may
ask during cross-examination.” Pennsylvania v.
Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989, 94 L. Ed. 2d
40 (1987) (emphasis in original). “The ability to
question adverse witnesses, however, does not
include the power to require the pretrial disclosure
of any and all information that might be useful in
contradicting unfavorable testimony.” /d@ at 53. In
Ritchie, the Court contrasted Vavis with its
decisions rejecting Confrontation Clause claims
predicated on a witness’ inability to remember key
testimony, or on the failure to disclose certain items
that could have been used in cross-examination. /«d
at 53°54 & n.10. Such authorities were in “full
accord with our earher decisions that have upheld a
Confrontation Clause infringement claim on this
issue only when there was a specific statutory or
court-imposed restriction at tmal on the scope of
questioning.” /d. at 53°54
Murdoch's objection involves a “court-1mposed
restriction at trial on the scope of questioning,” id.,
not matters of pretrial disclosure. Here, the State
disclosed the existence of Dinardo’s letter stating
that he was coerced into identifying Murdoch. Once
the State called Dinardo as a witness, due process
required the State to make such a disclosure. Gig/io
v. U/nited States, 405 U.S. 150, 153-55, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972). The Superior Court wrongly
prevented Murdoch, once he knew of the letter, from
using it to cross-examine Dinardo. ‘This objection
falls squarely within the Court’s established Sixth
Amendment case law. Artchie, 480 U.S. at 52
Unfortunately, the Ninth Circuit missed this
distinction between pretrial disclosure and mid-trial
restrictions on cross-examunation This
misconception finds it root in decisions of the Kighth
Circuit misreading the non-constitutional decision in
Swidler as imviting new) exceptions to the
Confrontation Clause. See JvAnson v. Norris, 537
I 3d 840, 846-47 (8th Cir. 2008); Newton v. Nemna
354 F.3d 776, 781-82 (8th Cir. 2004). According to
the Eighth Circuit, footnote 3 of Swid/er opened the
question of whether Vavis permits an exception to
the attorney chent privilege. The Ninth Circuit
followed these Eighth Circuit decisions and held that
Murdoch's constitutional claim necessarily presented
wy
an “open question” barring rehef under AEKDPA.
} ]
App. 24
Certiorar: is important not just to reverse the
Ninth Cireuit’s misreading of Swid/er but to
abrogate the even-more-pernicious Eighth Circuit
decisions. Those decisions involved the physician-
patient privilege and the psychotherapist-patient
privilege, not the attorney-chent privilege. By
extension of its misreading of Swid/er, the Eighth
Circuit has held that AEDPA bars review of state
court orders regarding any state law privilege,
except where the Court has specifically rejected that
privilege as a Confrontation Clause exception-—-that
is, the juvenile-records privilege and perhaps the
marital privilege.2 /d. See App. 26.
AEDPA would thus preclude Confrontation
Clause challenges regarding any number of state law
privileges—including communications with clergy,
accountants, journalists, social workers, researchers,
banking regulators, guardians ad litem, marriage
counselors, and nurses -not to mention Cahfornia
The marital privilege was at issue in Crawford v. Washington
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)
Although the plurality and the dissents in this appeal reference
Crawford, Murdoch does not (and need not) rely on Crawford
Briefing in this appeal took place in 2006, after the Ninth
Circuit determined that Crawford apphed retroactively, but
before this Court held that Crawford apphed = only
prospectively. See Bockting v. Bayer, 399 F.3d 1010 (9th Cir
2005), rev'd sub nom., Whorton v. Bockting, 549 U.S. 406, 127
S. Ct. 1173, 167 L. Ed. 2d 1 (2007). Davis, Smith, and this
Court's other pre’ 1998 decisions are more than sufficient to
warrant habeas relief under any standard
24
privileges for communications with sexual assault
counselors, domestic violence counselors, and human
trafficking caseworkers. See Charles Alan Wright et
al., 23 Fed. Prac. & Proc. Evid. §§ 5426 to 5431
(supp. 2010); Cal. Evid. Code §§ 1035 to 1038.2. By
this rationale, if a state enacted a privilege for
communications with veterinarians, judges in that
state could hmit cross-examination of pet-owners
until this Court specifically decided otherwise.
The Ninth Circuit did not sweep quite as broadly
as the Kighth Circuit, finding it sufficient that the
“state court could have found a principled reason’
that the attorney-chent privilege was worthier of
protection than the juvenile records privilege or the
marital privilege. App. 26. But, by extension,
AEDPA would mandate deference if the State
offered a “principled reason” why, for instance, its
unique “sexual assault counselor” privilege was
similarly worthy of heightened protection in sexual
assault prosecutions.
These Enghth and Ninth Circuit decisions
threaten virtually any habeas challenge to a state
law conviction, no matter how clear the violation. A
clever prosecutor would need only to scour the case
law—including, as here, precedents having nothing
to do with the constitutional provision at issue—to
manufacture ambiguity in this Court’s precedents,
and then argue that AEDPA barred review until this
Court rejected that claim.
This Court should grant certiorar: to correct the
Eighth and Ninth Circuits’ plain misreading of
Swidler. Cf Marx v. Texas, 528 U.S. 1034, 1208S
20
Ct. 574, 575, 145 L. Ed. 2d 436 (1999) (SCALIA, J.,
dissenting from denial of certiorari) (‘I do not think
the Court should ever depart from the plain meaning
of the Bill of Rights. But when it does take such a
step into the dark it has an obligation, it seems to
me, to clarify as soon as possible the extent of its
permitted departure.”). These holdings are not
merely wrong, but dangerously wrong. This Court's
Confrontation Clause precedents recognize only the
Fifth Amendment privilege against self
incrimination, not any state law privilege, as a bar to
cross‘examination on matters relevant to the
accuser’s bias or lack of credibility.
C. Murdoch Is Entitled to a Writ of Habeas
Corpus
If this Court agrees that the Ninth Circuit
misread Swid/er and this Court’s Confrontation
Clause decisions, the inquiry circles back to the
question originally at issue in this appeal: whether
Murdoch is entitled to a writ of habeas corpus
vacating his conviction.
Murdoch respectfully urges this Court to reverse
outright, as Judge Kozinski would have held, and to
direct the District Court to issue the requested writ
of habeas corpus. Murdoch filed his original petition
1l years ago, in 1999. It was not until five years
later that the Ninth Circuit originally remanded in
Murdoch I. When Murdoch appealed again in 2005,
it took another five years for the Ninth Circuit to
deny relief in Afurdoch //, to vacate that decision on
petition for rehearing, and then to issue an en ban
opinion revisiting and reversing Murdoch /
'S ae
rA®
The record is fully developed and establishes
Murdoch's entitlement to long-delayed relhef. Davis
held that the accused’s lost opportunity to use
evidence of a juvenile criminal record to impeach his
accusers general credibility was “constitutional
error of the first magnitude and no amount of
showing of want of prejudice would cure it.” 415
U.S. at 318 (quoting Smith, 390 U.S. at 131 (quoting
Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 16
L. Ed. 2d 314 (1966))). Smyth found such “first
magnitude” error where a trial court barred cross-
examination regarding the accuser’s real name. 390
U.S. at 131. “The correct inquiry is whether,
assuming that the damaging potential of the cross:
examination were fully realized, a reviewing court
might nonetheless say that the error was harmless
beyond a reasonable doubt.” Van Arsda/l/, 475 U.S.
at 684 (error not harmless where court prohibited
cross-examination regarding dismissal of public
drunkenness charge).
This case involves even starker prejudicial error,
with the prohibited examination involving a letter
directly contradicting the chief accuser's inculpatory
testimony. The District Court determined in this
case that the error was harmless because the
privileged letter was not credible and contrary to the
testimony of some of Murdoch's own witnesses. It
further noted, as did the Ninth Circuit plurality,
that Murdoch had the opportunity to cross-examine
Dinardo’s account of the crime, even though
Murdoch could not ask whether Dinardo previously
gave a different account
These holdings miss that “forcing a witness to
confront and explain his prior statements that
contradict his testimony is the gold standard for
effective cross-examination.” App. 46 (Kozinski, C.J.,
dissenting) (collecting authorities). Even accepting
for the sake of argument that the privileged letter
was not credible, the letter still opened the door for
the classic impeachment of “Were you lying then, or
are you lying now?”
There is no dispute that Dinardo was a key
witness against Murdoch. App. 5-6. The forensic
evidence implicated Dinardo, not Murdoch. App. 4.
One eyewitness, the bartender, identified Murdoch,
but that identification came 11 years after the crime.
App. 7.
It was one thing for Dinardo to admit on the
stand that he would have done “whatever it took” to
reduce his sentence, and that he had previously led
to protect himself. But it would have been another
thing entirely for Murdoch to confront Dinardo with
a prior statement that Dinardo was coerced into
identifying Murdoch. App. 5, 25.
At best, the State has arguments for why the
letter would not have doomed its case against
Murdoch. But that speculation cannot establish
harmlessness beyond reasonable doubt, particularly
not as this Court has applied that standard in Davis,
Smith, and Van Arsdal/.
Murdoch is serving a life sentence, without
possibility of parole, after the Superior Court
allowed him to confront his accuser only with one
hand tied behind his back. Murdoch asks the Court
to reverse the judgment of the Ninth Circuit and to
direct the issuance of a writ of habeas corpus.
CONCLUSION
The Court should grant this petition for
certiorari and vacate or reverse the judgment of the
Ninth Circuit
Respectfully submitted
STEVEN M. KLEPPER*
KRAMON & GRAHAM, P.A.
ONE SOUTH STREET, STE. 2600
BALTIMORE, MARYLAND 21202
(410) 752-6030
sklepper@kg-law.com
* Counsel of Record
SEYMOUR |. AMSTER
LAW OFFICES OF SEYMOUR |. AMSTER
6320 VAN NUYS BOULEVARD, STE. 300
VAN NuyS, CALIFORNIA 91401
(818) 947-0104
AttyAmster@aol.co1
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRANKLIN _ |
MURDOCH, JR.,
Petitioner-Appellant, | No. 05-55665
Vv. | D.C. No.
ROY CASTRO, Warden; | CV 99-06900
EDMUND BROWN, JR.,” RSWL
Attorney General of the
State of California, | OPINION
Respondents -Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
March 24, 2009 — San Francisco, California
Filed June 21, 2010
Before: Alex Kozinski, Chief Judge, Andrew J
Kleinfeld,A. Wallace Tashima, Sidney R. Thomas,
Barry G. Silverman, M. Margaret McKeown, Kim
McLane Wardlaw, William A. Fletcher, Consuelo M.
Callahan, Sandra S. Ikuta, and N. Randy Smith,
Circuit Judges.
Opinion by Judge Tashima:
Concurrence by Judge Silverman;
Dissent by Chief Judge Kozinski:;
Dissent by Judge Thomas
“Edmund Brown, Jr., is substituted for his predecessor, Bill Lockyer
as Attorney General of the State of Califormia. Fed. R.-App.P. 434c)(2)
App. 3
OPINION
TASHIMA, Circuit Judge:
Charles Murdoch was convicted of murder in
California state court. Before trial, the prosecutor
informed the court that a prosecution witness and
participant in the crime had written a letter to his
attorney claiming that Murdoch was not involved in
the crime and that the witness had been coerced into
implicating Murdoch. The state court ruled that
Murdoch could not have access to the letter because
it was protected under California's attorney-client
privilege. In order to determine whether Murdoch is
entitled to habeas relief, we must decide whether,
under "clearly established Federal law, as
determined by the Supreme Court of the United
States," 28 U.S.C. § 2254(d)Q), the Confrontation
Clause of the Sixth Amendment of the United States
Constitution! compelled the release of the letter to
Murdoch in spite of the attorney-chent privilege.
I. BACKGROUND
On May 17, 1983, four men robbed the
Horseshoe Bar in Leng Beach, California. During the
course of the robbery, one bystander was shot and
1 "In all criminal prosecutions, the accused shall enjoy the
right... to be confronted with the witnesses against him."
U.S. CONST. Amend. VI.
2 The factual and procedural summary ts taken largely from
Murdoch v. Castro, 489 F.3d 1063, 1064-67 (9 Cir. 2007)
("Murdoch If").
App. 4
killed; another was stabbed and severely wounded.
The men recovered approximately $200 from the
cash register and left behind a fingerprint. The
crime went unsolved until 11 years later, when
advances 1n fingerprint technology enabled police to
identify Dino Dinardo as one of the perpetrators.
Officers arrested Dinardo on June 30, 1994, in
Berkeley, Cahfornia. When first questioned, Dinardo
denied any involvement in the crime, but later
recanted, admitting his involvement in the robbery,
and identifying Murdoch as one of his accomplices.
Both Dinardo and Murdoch were charged with
murder accompanied by special circumstances.
Dinardo was tried first. At a suppression hearing
that preceded his trial, Dinardo testified that his
confession to the Long Beach polce had been
coerced, and that he had given the confession in
exchange for a promise that he would be released to
see his wife and daughter. Dinardo was convicted
and was sentenced to 25 years' to life imprisonment.
At sentencing, the judge said to Dinardo:
[ would like to do something
different, Mr. Dinardo. You've
probably been told it's a set sentence.
I have to give it. The only thing I can
say 1s I have 90 days to change the
sentence if anything changes in the
way of your mind or the District
Attorney's mind insofar as trying to
resolve this with something less than
the set sentence
App. 5
Frankly, from the standpoint of
the other trial, unless the District.
Attorney has something more, I just
wonder without your assistance where
they're going; but maybe sometimes
cases develop at the last minute. But,
to my knowledge, I don't know of any
other evidence. They have a_ very
difficult case without your assistance.
But that's actually between
attorneys, and it's not the judge's
province.
I was hoping there would be a
resolution so that I could sentence you
to something jess, which I would
prefer to do from everything about this
case, especially the length of time and
all the years that you lived what
appears to be a law-abiding life before
you got arrested.
Dinardo subsequently did testify and, in
return, received a reduction of his conviction § to
voluntary manslaughter and a reduced sentence of
12 years' imprisonment.? Dinardo was a key witness
3. The dissent states that "[flor a judge to goad someone he's
just given a life sentence into helping the prosecution by
promising to give him his life back, but only if he helps finger
the defendant, is judicial extortion.” Diss. op. at 9046. What
the Chief Judge harshly labels as "judicial extortion" has long
been a part of our criminal justice system. See, eg., US.S.G. §
SK1.1 (providing for a downward sentencing departure for
App. 6
at Murdoch's tnal. He testified that, in 1983,
Murdoch had approached him "to do a job" and that
the two of them, together with two other men,
robbed the Horseshoe Bar. According to Dinardo,
when Murdoch entered the bar, Murdoch carried a
substantial assistance in the prosecution of another person); 18
U.S.C. § 3553(f(5) (providing that a “safety harbor” sentence
below a statutory minimum is available only if, wnter alia, the
sentencing court finds that the defendant has fully cooperated
with the Government). Perhaps the most famous example of
such judicial "goading" or "extortion" is that of Chef Judge
Sirica in the Watergate trial. There, as reported by 7ime
magazine in its 1973 man of-the-year story, Judge Sirica "kept
the pressure on the other convicted conspirators to talk too by
giving them harsh provisional sentences ranging up to 40
years. ... He promised to review the sentences later and said
that the final sentencing ‘would depend on your full cooperation
with the grand jury and the Senate Select Committee.’
Available at http://www.time.com/subscriber/personoftheyear
archive/stories/973. html (ast visited May 15, 2010).
The dissent characterizes Judge Sirica's conduct of the
Watergate trial as “unconscionable” and “a blemish on the
reputation of the federal courts... ." Diss op. at 9046 n.*. ‘The
.C. Circuit, sitting en banc, however, did not express the
same, harsh view. It not only affirmed Judge Sirica's conduct,
but lauded it in the face of charges that he conducted the trial
and sentencing in an inquisitorial manner. See l/nited States 1
McCord, 509 F.2d 334, 347 (D.C. Cir. 1974) (en bane) ("The
judge, hke the prosecutor in this respect, is not a passive by-
stander in the arena of justice, a spectator at a ‘sporting event,’
rather he or she has the most pressing affirmative
responsibility to see that justice 1s done in every case.”
(footnotes omitted)), cert. denied, 421 U.S. 930 (1975). see a/so
U/nited States v. Liddy, 509 F.2d 428, 442 (D.C. Cir. 1974)
("Judge Sirica's palpable search for truth in such a trial was
not only permissrble, 1t was in the highest tradition of has office
as a federal judge.").
App. 7
.22 cahber rifle and announced loudly, "Don't nobody
move. This is a stick-up." Dinardo took this as his
cue to empty the cash register. He fumbled with the
buttons on the register, heard a gunshot, emptied
the register, and ran out the back door, joining the
other two men in the getaway car, with Murdoch
joining them about a minute later. He _ recalled
seeing Murdoch in possession of the rifle both in the
bar and in the car. Dinardo testified that the first
time he learned that someone had been shot in the
robbery was the day of his arrest, 11 years after the
crime
During Murdoch's trial, Murdoch's attorney,
Dinardo's attorney, the prosecutor, and the presiding
judge discussed a letter from Dinardo addressed to
his then counsel. The letter was first brought to the
court's attention by the prosecutor, who indicated
that in her interviews of Dinardo, he told her of the
existence of a letter in which he, Dinardo, stated
that he was coerced by the police into implicating
Murdoch in the erime. Dinardo's new counsel
asserted the attorney-chent privilege and = work-
product doctrine as grounds for refusing to disclose
the letter. The court concluded that Dinardo's letter
to Dinardo's former counsel, who was | still
representing Dinardo when the letter was written,
was protected by the attorney-client privilege and
thus could not be used, on cross-examination, to
impeach Dinardo
Although Dinardo was not. cross-examined
about the letter, Murdoch's counsel succeeded in
App. 8
eliciting testimony that challenged Dinardo's
credibility as a witness. Dinardo testified that he
had been convicted of the same murder for which
Murdoch was now being tried and that by testifying
in Murdoch's trial, he would "get out in about five
years" rather than 21 or more years. He admitted
that when he was initially questioned by the police,
he had hed and denied that he had ever been inside
the Horseshoe Bar. He admitted that he would have
done "whatever it took" to get out of custody and be
reunited with his daughter. He also testified to
convictions for grand theft in 1982 and petty theft in
1984. On re-direct examination by the prosecutor,
Dinardo testified that during the police questioning,
he named a "Charles or Chuck" as someone else
involved in the crime, but he could not remember the
last name. He was shown photographs at the end of
the interview, and he identified Murdoch as one of
his accomphices. On re-cross, he stated that he had
testified in his own trial that his confession had been
coerced. He also admitted that, had the fingerprints
not identified him as one of the robbers, he would
have continued to lhe to the police about his
involvement.
In addition to Dinardo, other witnesses from
the Horeshoe Bar testified and provided in-court
identification of Murdoch. The bartender, Dyanne
Spence, described looking into Murdoch's eyes down
the barrel of a rifle pointed at her face. "He's been
scaring me for years," she said. She also testified
that she had identified Murdoch at a live lineup at
the county jail in 1994 and that she was sure
App. 9
"beyond a shadow of a doubt" that Murdoch had
committed the crime.
Murdoch was convicted of first-degree murder
with a robbery-murder special circumstance, and
sentenced to life imprisonment without parole. The
California Court of Appeal affirmed the conviction,
and denied Murdoch's petition for a writ of habeas
corpus. The California Supreme Court denied
Murdoch's petition for review
Murdoch then filed a federal petition for a
writ of habeas corpus, which the district court
dismissed. On Murdoch's first appeal, we vacated the
order denying Murdoch's’ habeas petition and
remanded the case to the district court stating:
Today, we address a situation
where a substantial showing has been
made that, depending upon the
content of Dinardo's letter, the
Confrontation Clause and attorney-
chent privilege are potentially at odds
—a set of facts the Supreme Court has
not yet examined. Its_ precedents,
however, clearly provide that
evidentiary privileges or other state
laws must yield if necessary to ensure
the level of cross-examination
demanded by the Sixth Amendment
App. 13
therefore the Sixth Amendment did not require that
the letter be released to him. /d. at 1069-70.
Judge Bright’ dissented from the panel's
decision. He believed that access to the letter would
have allowed Murdoch to impeach Dinardo's
testimony much more effectively than was possible
without the letter, and that, on the basis of Murdoch
I, habeas relief should have been granted. /d. at
1070-72 (Bright, J., dissenting).
We granted Murdoch's petition for rehearing
en banc.5 Murdoch v. Castro, 546 F.3d 1051 (9th Cir.
2008).
IT. JURISDICTION AND
STANDARD OF REVIEW
We review de novo the district court's denial of
a § 2254 habeas petition. 7i/cock v. Budge, 538 F.3d
1138, 1143 (9 Cir. 2008). Under the Antiterrorism
and Effective Death Penalty Act of 1996 ("‘AEDPA"),
a habeas petition challenging a state court conviction
will not be granted unless the decision "was contrary
to, or involved an unreasonable application of,
clearly established Federallaw, as determined by
the Supreme Court of the United States." 28 U.S.C. §
4 The Honorable Myron H. Bright, Semor United States
Circuit Judge for the Eighth Circuit, sitting by designation,
was a member of the Murdoch // panel.
The en banc court ordered supplemental! briefing on the
question of whether the court should reconsider its decision in
Murdoch I
App. 16
relief for an unreasonable application of law can be
"based on the application of a governing legal
principle to a set of facts different from those of the
case in which the principle was announced. /d. at
76.© Habeas relief for an unreasonable application of
law can be "based on an application of a governing
legal principle to a set of facts different from those of
6 The California Court of Appeal, which rendered the last
reasoned state court decision in this case, addressed Murdoch's
Confrontation Clause argument only obliquely. It did not
mention the Confrontation Clause in its opinion, but it did
discuss and quote from the section of Murdoch's brief in which
he raised the issue. The court also quoted from Peop/e v.
Godlewski, 21 Cal. Rptr. 2d 796, 800 (Ct. App. 1993), a case
that dealt with the tension between the attorney-client
privilege and the Confrontation Clause. Whether the state
court adequately responded to Murdoch's Confrontation Clause
argument, however, 1s irrelevant. Even when there is no
reasoned state court opinion explaining the denial of a
defendant's claim in any respect, we "must assume that the
state court has decided all the issues and ‘perform an
independent review of the record to ascertain whether the state
court decision was objectively reasonable.'" Heynoso, 461 F.3d
at 1109 (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir
2005) (per curiam)) (internal quotation marks omitted). Thus
we do not review Murdoch's claim de novo, as we would if the
state court had clearly indicated that it had not reached the
merits of Murdoch's claim. See id; Prrtle, 313 F.3d at 1167
The dissent refuses to accept these established principles of
AEDPA review. Instead, it spends several pages discussing the
state appellate court's duty under state law to “analyzel J .
leach] contention" and convinces itself that the state court
erroneously “dechineld] to reach [the] issue" and "overlooked" it
See Diss. op. at 9050-52. But whether we review a claim de
novo under the AEDPA is a question of federal law and, on that
question, as explained above, we are bound by /feynoso and
Pirtle
App. 17
the case in which the principle was announced.” /d.;
accord Panetti v. Quarterman, 1278S. Ct. 2842, 2858
(2007), but only when the principle’ "clearly
extend[s]" to the new set of facts. Wright v. Van
Patten, 128S. Ct. 743, 745 (2008) (per curiam)
A review of the Supreme Court's recent case
law on this subject suggests that, when a state court
may draw a principled distinction between the case
before it and Supreme Court caselaw, the law is not
clearly established for the state-court case. In
Musladin 11, 549 U.S. at 77, the Supreme Court
vacated a decision of this court, Mus/adin- v
Lamarque, 427 F.3d 653, 661 (9th Cir. 2005)
("Musladin T'), in which this court held that the
state court unreasonably applied clearly established
federal] law by allowing the victim's family members,
in a murder tnal, to wear buttons depicting the
victim while in the presence of the jury
In support of our decision in Mus/adin /, we
rehed primarily on two Supreme Court cases: /’stelle
vy. Willams, 425 U.S. 501 (1976), and //olbrook v
Flynn, 475 U.S. 560 (1986). In Wiliams, the Court
noted that, when a defendant appears before the
jury in prison garb, "{t}he defendant's clothing is so
hkely to be a continuing influence throughout the
trial that ... an unacceptable risk is presented of
impermissible factors coming into play." 425 U.S. at
505. Thus, a defendant's right to a fair trial is
violated if he is required to appear in the presence of
the jury in such attire. /d@. at 505-06. The Court
reaffirmed this basic position in //ynn, but held that
App. 18
the presence of extra security personnel in the
courtroom during trial did not necessarily violate the
defendant's Sixth and Fourteenth Amendment rights
because, unlike the situation described in W7//rams,
it was not “inherently prejudicial." Flynn, 475 U.S.
at 569. Although the presence of additional security
in the courtroom might violate a defendant's right to
a fair trial in a particular case, Flynn's trial, in
which four uniformed state troopers sat silently in
the first row of the spectator section, did not present
such a case. /d. at 569-72. In Mus/adin /, we held
that the presence of the victim's family in the
courtroom while wearing buttons was inherently
prejudicial, and was an unreasonable application of
the test described in Wi//rams and Flynn. Mus/adin
[427 F.3d at 658-61.
When the Supreme Court vacated our grant of
habeas rehef in Mus/adin J, it pointed out that
"Ibloth Wiliams and Flynn dealt with government:
sponsored practices." Mus/adin IT, 549 U.S. at 75. No
Supreme Court case had apphed Wi/Zams and Flynn
to courtroom conduct by private actors, and, because
part of the test established in Wi//iams and Flynn
asked "whether the [allegedly prejudicial] practices
furthered an essential state interest," it was not
clearly established that the test would apply to
actions by private actors. /d. at 76. The Court
summarized its reasoning as follows:
Given the lack of holdings from
this Court regarding the potentially
prejudicial effect of spectators’
App. 19
courtroom conduct of the kind involved
here, it cannot be said that the state
court “unreasonablly] appliled) clearly
established Federal law." § 2254(d)(1).
No holding of this Court required the
California Court of Appeal to apply
the test of Willams and Fiynn to the
spectators' conduct here. Therefore.
the state court's decision was not
contrary to or an- unreasonable
appheation of clearly established
federal law.
/d. at 77 (emendations in original).
Similarly, in Van Patten, the Court held that
it was not clearly established that a defendant
received ineffective assistance of counsel if his
lawyer represented him via speakerphone, rather
than by being physically present in the courtroom.
128 S. Ct. at 746-47. The Seventh Circuit had
granted habeas relief on the basis of United States v.
Cronic, 466 U.S. 648 (1984), which held that in
certain circumstances a defendant need not prove
that he was actually prejudiced by his attorney's
conduct. The logic of Cronic is that, in some
situations, "the likelihood that any lawyer, even a
fully competent one, could provide’ effective
assistance is so small that a presumption of
prejudice is appropriate without inquiry into the
actual conduct of the trial." /d at 659-60. One
situation in which Cronic apples is when "counsel
lis] either totally absent, or prevented from assisting
App. 20
the accused during a= critical stage of the
proceeding." /d. at 659 n.25. The Court reversed the
Seventh Circuit because Cron did not Clearly apply
to the facts at hand. Van Patten, 128 S. Ct. at 746.
Although an attorney who participated in a hearing
telephonically might not do as well as one who was
physically present in the courtroom, the state court
could) reasonably believe that the attorney's
performance would not be so poor as to justify rehef
without showing prejudice: “Our cases provide no
categorical answer to this question." /d
In Panetti, 127 S. Ct. 2842, by contrast. there
Was no principled way to apply the Court's precedent
to a somewhat new factual situation and reach the
state court's result: thus, the Court granted habeas
rehef. Panett? concerned the pending execution of
person with a history of mental illness. 127 S. Ct.
2848-49. The Court identified the controlling legal
principle as the holding of Ford \- Wainwright, 477
U.S. 399 (1986), which required that a prisoner who
has made "a substantial threshold showing of
msanity" be given a competency hearing before being
subject to execution. Jd. at 426 (Powell. J.
concurring in part and concurring in the judgment).’
The Court held that it was clearly established that
ford required a competency hearing with procedural!
protections for the prisoner, even though the
standard in ford was stated in general terms and
Because Justice Powell's Opinion represente d the narrow est
> a
ground on which five Justices agreed, the Panett: court
recognized it as the controlling oprmon. 127 S) Ct. at 2856
App. 21
the facts were not identical to those with which 1
was now faced. Panett:, 127 S. Ct. at 2858-59. There
was no reasonable way to apply ford that would not
reach this result, and thus the state court had
unreasonably apphed the law when it failed to
provide Panetti with a proper competency hearing
ld. at 2858
[2] The common thread in all these cases is
that when there is a principled reason for the state
court to distinguish between the case before it and
Supreme Court precedent, the state court's decision
will not be an unreasonable apphication of clearly
established Supreme Court law. As we stated in
Moses \ Payne, 555 F 3d 742 (9th Cir. 2009)
(Wjhen a Supreme Court decision does
not "squarely address{ ] the issue in
thle} case" or establish a legal
principle that “clearly extendls]" to a
new context to the extent required by
the Supreme Court in these recent
decisions, it cannot be said, under
AEDPA, there is "clearly established"
Supreme Court precedent addressing
the issue before us, and so we must
defer to the state court's decision
ld. at 754 (emendations in original) (quoting Van
Patten, 128 S. Ct. at 746, 745)
13] ‘The Supreme Court has examined the
potential conflicts between the Confrontation Clause
»»)
App. 22
and other rights and_ privileges. including the
marital privilege, Crawford v. Washington, 04] US.
36 (2004).8 the Fifth Amendment privilege against
self-incrimination, Douglas v. Alabama, 380 U.S. 410
(1965). and the state's interest in the confidentiality
of adjudications of juvemle delinquency, Davis v
Alaska. 415 U.S. 308 (1974). But no Supreme Court
case has directly addressed the potential conflict
between state-law attorney-client privilege and the
Confrontation Clause, as we acknowledged in
Murdoch 1 365 F.3d at 702 ("Today, we address a
situation where a substantial showing has been
made that, depending upon the content of Dinardo's
letter. the Confrontation Clause and attorney chent
privilege are potentially at odds —a set of facts the
Supreme Court fas not yet examimed.") (emphasis
added). Indeed. in a case involving the attorney”
client privilege, the Supreme Court has expressly
stated that it would not consider the question
whether the attorney-client privilege might yield in
the face of constitutional rights. Swid/er & Berlin v.
United States, 524 U.S. 399, 408 n.3 (1998).
In Swidler, the Supreme Court addressed the
scope of the attorney-client privilege - specifically,
"the extent to which the privilege survives the death
of the client.” /a@. at 403. The Independent Counsel
8 Crawford was decided after Murdoch's conviction became
final and does not apply retroactively on collateral review. See
Whorton v. Brockting, 549 U.S. 406 (2007). Thus, whether the
Supreme Court in Crawford explamed “what the Sixth
Amendment was supposed to prevent,” Diss. op. at 9056, 1s
irrelevant to our review under the AK DPA
App. 23
sought notes taken by an attorney during a meeting
with his chent, former Deputy White House Counsel
Vincent Foster. Foster sought legal representation,
but, shortly after the meeting, he committed suicide.
Jd. at 401-02. The Independent Counsel argued that
"the attorney-chent privilege should not prevent
disclosure of confidential communications where the
chent has died and the information is relevant to a
criminal proceeding." /d@. at 403.
‘The Court began by discussing the purpose of
the privilege, "to encourage ‘full ands frank
communication between attorneys and their clients
and thereby promote broader public interests in the
observance of law and the administration of justice.'
" Td. (quoting Upjohn Co. v. United States, 449 U.S.
383, 389 (1981)). The Independent Counsel
analogized the situation to the testamentary
exception to the attorney-chent privilege, arguing
that "in criminal proceedings, the interest in
determining whether a crime has been committed
should trump chent confidentiality." /d. at 406. The
Court disagreed, stating that, unhke with the
testamentary exception, "[t]here is no reason to
suppose as a general matter that grand jury
testimony about confidential communications
furthers the client's intent." /d. As pertinent here,
the Court further reasoned that "there is no case
authority for the proposition that the privilege
apphes differently in criminal and civil cases." /d. at
408-09. Significantly, the Court noted that,
"Petitioners, while opposing wholesale abrogation of
the privilege in criminal cases, concede that
App. 24
exceptional circumstances implicating a criminal
defendant's constitutional mghts might warrant
breaching the privilege." but the Court stated that
"lwle do not... need to reach this issue, since such
exceptional circumstances clearly are not presented
here." /d. at 408 n.3 (emphasis added).
[4] The Supreme Court accordingly has
explicitly stated that it was not deciding whether the
attorney-chent privilege might have to yield to a
criminal defendant's constitutional rights. We have
held that a constitutional principle is not clearly
established for purposes of § 2254 where the
Supreme Court has expressly concluded that an
issue is an “open question." Aarp v. Ornaski, 431
F.3d 1158, 1185 (9th Cir. 2005): see also Meyia v
Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (holding
that the Supreme Court had not clearly established,
for purposes of § 2254, that the admission of
propensity evidence In that case was
unconstitutional because the Supreme Court had
expressed no opinion on the issue and the petitioner
accordingly could "point to no Supreme Court
precedent" establishing the constitutional right):
Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.
2008) ("Because the Court has expressly left this
issue an open question, the state court did not
unreasonably apply clearly established federal law
in determining that the admission of evidence of
Larson's criminal history did not violate due
process." (internal quotation marks omitted)).
App. 25
The Eighth Circuit has rehed on the Supreme
Court's express reservation of the issue in Swid/er to
hold that the issue is not clearly established for
purposes of § 2254. In Newton v. Aemna, 354 F.3d
776 (8th Cir. 2004), the state trial court demed the
defendant's motion to produce the only eyewitness'
medical records. The Eighth Circuit "noteld] that the
Supreme Court has_ recognized in other
circumstances that constitutional rights can trump
evidentiary privileges," citing Davis and Swidler. /d.
at 781. The court stated, however, that Swid/er
"expressly left open the question of whether a
criminal defendant's constitutional rights might
overcome the attorney-client privilege,” and
therefore concluded that the Supreme Court had not
clearly established whether a state's "physician-
patient privilege must give way to a defendant's
desire to use psychiatric records in_— cross
examination." /d. at 781, 782; see also Johnson v.
Norris, 537 F.3d 840, 846-47 (8th Cir. 2008)
(discussing Newton and Swidiler and concluding
that, although Davis and Pennsylvania v. Alitchie,
480 U.S. 39 (1987), "establish that in at least some
circumstances, an accused's constitutional rights are
paramount to a State's interest in protecting
confidential information," those cases "do not
establish a specific legal rule that answers whether a
State's psychotherapist-patient privilege must yield
to an accused's desire to use confidential information
in defense of a criminal case"). As the Eighth Circuit
reasoned in Newton, "[gliven the restrictive nature
of habeas review, it is not our province to speculate
as to whether the Supreme Court, if faced with the
App. 26
issue, would find that [a state's] physician-patient
privilege must give way to a defendant's desire to
use [privileged material] in cross-examination."
Newton, 354 F.3d at 782.
It is not mere formalism to distinguish
between attorney-client privilege and other rights
and privileges the Court has dealt with in its
Confrontation Clause jurisprudence. The attorney-
chent privilege is, after all, "one of the oldest
recognized privileges for confidential
communications," Swidler, 524 U.S. at 403. The
Supreme Court might well decide that it is worthy of
greater protection than the marital privilege, see
Crawford v. Washington, 541 US. 36, or the
confidentiality of juvenile delinquency proceedings,
see Davis v. Alaska, 415 U.S. 308. In addition, the
Court might be more likely to protect documents
subject to attorney-client privilege because it is
easier to maintain such_ protection without
eliminating the defendant's ability effectively to
cross‘examine a witness. Because the attorney-client
privilege protects only a communication between an
attorney and a client, not the facts that are
communicated, a defendant would remain free to
question the witness about the underlying facts, just
as happened here. Despite not having access to the
letter, Murdoch was able to cross-examine Dinardo
on a wide range of subjects, including Dinardo's
earlier denial of involvement in the murder. As the
Supreme Court has explained, the attorney-client
privilege does not "create a broad ‘zone of silence’
over" the subject matter of the communication. "The
App. 27
privilege only protects disclosure of I[thel
communications [themselves]; it does not protect
disclosure of the underlying facts," so long as the
underlying facts can be proven without resort to the
privileged materials. Upjohn, 449 U.S. at 395.
In Crawford, by contrast, the marital privilege
prevented the defendant from cress-examining the
witness at all. See 541 U.S. at 40. The same was true
in Douglas v. Alabama, 380 U.S. at 416-17, when the
witness asserted his Fifth Amendment privilege
against self-incrimination.
[5] We acknowledge the possibility that the
Supreme Court may in the future well decide that
the Confrontation Clause in some cases requires the
disclosure of documents that are subject to the
attorney-client privilege. But under the highly
deferential standard established by AE DPA and the
Supreme Court, as long as the state court could have
found a principled reason not to apply the Court's
precedents to the current case, we may not grant
habeas relief. As was the case in Mus/ladin IT, 549
U.S. at 77, "InJo holding of thle Supreme] Court
required the Calfornia Court of Appeal to apply"
cases such as Douglas and Davis to Murdoch. The
relationship between the Confrontation Clause and
the attorney-chent privilege has not been clearly
established by the Supreme Court; as a result, we
cannot say that the California court unreasonably
App. 29
SILVERMAN, Circuit Judge, concurring
This case 1s built on a false premise that
there was somehow a conflict between Dinardo's
right to claim the attorney-client privilege under
California law and Murdoch's federal constitutiona!
right of confrontation. There was no conflict. The
trial court could have sustained Dinardo's claim of
privilege, and then having done _ so, stricken
Dinardo's direct testimony on the ground that
Murdoch could not be effectively cross-examined.
This is a very common scenario when a witness
testifies on direct but then cannot be cross
examined. See TVoolate v. Borg, 828 F.2d 571, 572
(9th Cir. 1987) (Ordinarily, when a _ testifying
witness cannot or will not be cross-examined, the
appropriate relief... 1s to strike the direct testimony
of the witness and to instruct the jury to disregard
it.") Gnternal quotation marks omitted); United
States v. Brown, 634 F.2d 819, 824 (5th Cir. 1981)
(stating that while "it is by no means clear that the
appropriate resolution to a conflict between [the
confrontation] right and the marital privilege is the
actual introduction of the testimony" a defendant is
entitled "to strike that portion of the testimony of
the witnesses against him with regard to which his
right of confrontation is lost"); 1 Kenneth S. Broun,
et al., McCormick on Evidence § 19 (6th ed. 2006)
(stating that "many judges and writers" agree that
excluding the direct testimony is the proper remedy
when a witness cannot be properly cross-examined).
App. 30
The problem 1s that Murdoch's counsel on/y
sought disclosure of the letter Dinardo had written
to his lawyer, deputy public defender Star. When the
trial court sustained the claim of attorney-client
privilege, that’s where Murdoch's lawyer was content
to leave it. His lawyer unquestionably perfected his
objection to the court's denial of the disclosure
request, but never sought to strike Dinardo's
testimony. This is the remedy that the law provides
in the case of a witness who cannot be cross:
examined for any reason. If the direct testimony
cannot be tested by cross-examination, it cannot
stand and is stricken.
Had the trial court denied a motion to strike
Dinardo's testimony, we would have a legitimate
confrontation problem on our hands, but no such
motion was ever made. Thus, it cannot be said that
the state court denied Murdoch's confrontation right
at all, much less that it acted unreasonably or
contrary to clearly established Supreme Court law.
In the absence of a constitutional violation, federal
habeas corpus relief cannot be granted. 28 U.S.C. §
2254(a), (d).
For these reasons, | would affirm the denial of
habeas rehef.
App. 31
Chief Judge KOZINSKI, dissenting, with
whom Judges W. Fletcher and Wardlaw join, and
Judges Thomas and McKeown join with respect to
Parts 2 and 3:
If it wasn't for bad luck, Murdoch wouldn't
have no luck at all. He's wakin' up this mornin’ in
jail when there's strong proof he ain't done nothing
wrong. | would certainly defer to a jury's contrary
verdict if it had seen this evidence and convicted
Murdoch after a fair trial, presided over by a fair
judge, followed by an appeal where the justices
considered all of his) constitutional claims. But
Murdoch had none of these.
Start with the trial judge: He was so worried
that the prosecution couldn't put on sufficient
evidence to convict Murdoch that he sentenced
Murdoch's alleged confederate (Dinardo) to life in
prison, but promised to give him a big break if he
testified against Murdoch. ‘True to his word, right
after Dinardo fingered Murdoch, and as Murdoch's
jury was retiring to deliberate, the judge rewarded
Dinardo by reducing his life sentence to a walk-away
twelve years—or, as Dinardo himself estimated,
actual time served of about five years.
Put yourself in Dinardo's shoes: You've just
been sentenced to spend the rest of your days behind
bars, never again to hold your infant daughter in
your arms. But the judge immediately dangles the
promise of leaving prison and resuming a normal life
before she turns eight, 1f only you help nail Murdoch.
App. 32
Prosecutors are known to offer defendants a break if
they testify truthfully against a co-defendant. For a
judge to goad someone he's just given a hfe sentence
into helping the prosecution by promising to give
him his life back, but only if he helps finger the
defendant, is judicial extortion.” You'd have to be
more than human not to do or say whatever it takes
to grab that brass ring.
I didn't coin the term: it comes from Philip Kurland,
probably the preeminent constitutional scholar at the time of
Watergate, who referred to Chief Judge Sirica's similar
misconduct as "a form of extortion.” Man of the Year: Judge
John J. Simca, 7ime, Jan. 7, 1974. James Fellers, then the
ABA's President-Elect, hkened Judge Sirica's treatment of the
Watergate defendants to the “torture rack and the Spanish
Inquisition." /d@. Dean Monroe Freedman of Hofstra Law Schoo!
argued that "Sirica deserves to be censured for becoming the
prosecutor himself." /d.
Sirica's unconscionable conduct 1s a blemish on the
reputation of the federal courts. While covering him with wet
warm kisses as to his other questionable conduct, the D.C.
Circuit stopped short of approving Sirica's blackjacking of the
defendants. l’nited States v. MfeCord, 509 F.2d 334, 346 n.35
(D.C. Cir. 1974) (en banc). No one. until today, has. Even the
trial judge in Murdoch and Dinardo's cases recognized a judge
Shouldn't act this way. See p. 9063 infra. We've said as much in
the past: "[JJudicial involvement in plea negotiations inevitably
carries with it the high and unacceptable risk of coercing a
defendant to accept the proposed agreement," and that
"violatels] a defendant's fundamental constitutional rights.’
United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992)
"[CJourts must not use the sentencing power as a carrot and
stick ... and they must not create an appearance of such a
practice." L’nited States v. Stockwell, 472 F.2d 1186, 1187 (9th
Cir. 1973). One wonders whether these cases survive today
App. 33
Not only did the trial judge strong-arm
Dinardo into testifying, he prevented the defense
from seeing—and so from using for cross-
examination—-a letter Dinardo had written a year
earlier exculpating Murdoch and disclosing that the
pohce had coerced Dinardo into making false
accusations. The letter, written by Dinardo's own
hand on notebook pauper, 1s still under seal, protected
by Dinardo's vestigial attorney-chent privilege, but
Judge Bright's reconstruction is a fair summary:
1 would hke to make a
statement about the facts surrounding
my arrest for robbery and murder. |
was taking care of my young daughter
when Long Beach police arrested me
at my home in Berkeley. Two
policemen, Detective Pavek and his
partner, took me to the Berkeley
Pohce Department and interviewed
me. I wanted to get back to my
daughter as | worried about her
welfare. At that time, Detective Pavek
coerced a statement from me and
promised not to charge me if 1 made a
statement that Charles Murdoch
participated in the crime. But, | do not
actually know Mr. Murdoch, although
I know his brother. Mr. Murdoch and |
did not commit any crime.
Murdoch v. Castro, 489 F.3d 1063. 1071 (9th Cir.
2007) (Bright, J., dissenting).
App. 34
This letter would have destroyed Dinardo as a
Witness, so the trial] Judge suppressed it After all
Vhat's the point of putting the screws on Dinardo
only to have his te stimony decimated by his contr ars
prior statement? So the defense never got to see the
letter and the Jury never heard of it. despite cases
from the state court of appeal and the state supreme
court squarely holding Murdoch was entitled to the
letter.
You'd think that. with all] that controlling
authority on point, the state appellate court would
have reversed the conviction. But vou'd be wrong
Judges can only reverse a conviction if they conside;
the defendant's winning argument. Here. the court
of appeal, for reasons that can be explained only one
Way, see pp. 9050-52 infra. did not. It's not like the
court summarily affirmed the conviction: it spent
thirty pages 60InNg Over Murdoch's other - irguments
and knocking them down like bowling pins. But
Murdoch's best argsument—the one for which the
sovernment had yo answer—the state appellate
judges just skipped over as if he never made it. This
ls passing strange, but it's What happened
Now, to complete Murdoch's run of ill luck, a
plurality of our panel grants deference to a non
existent state-court "adjudication" of his winning
claim and concludes that the state courts were not
unreasonable in holding what they in fact never
held. And, even though a majority of the en ban
panel agrees that Murdoch was denied his right t
confrontation. our concurring colleague denies rehet
pp 4°)
based on a procedural default argument that the
state has never made. If everybody went to heaven, |]
do beheve poor Murdoch would miss the call
1. AEDPA Deference. The plurality holds that
the state courts adjudicated Murdoch's
Confrontation Clause claim on the merits, so we
must defer under AEDPA. Pl. op. 9032-33 & n.5.
That's contrary to the facts, because the last
reasoned decision of the state courts contains not a
single word about the Confrontation Clause: it's
contrary to the concerns of comity and federalism
that motivated AEDPA, because the state courts
have interpreted the Confrontation Clause as
Murdoch suggests: and it's contrary to the very
essence of habeas review, because no court will ever
actually decide Murdoch's constitutional claim on
the merits (unless lightning strikes and the Supreme
Court intervenes).
a. Murdoch argued to the state courts that his
Sixth Amendment right to confrontation was
violated when Dinardo was allowed to testifv. but
could not be cross-examined about a letter he wrote
exculpating Murdoch. Over the course of nearly
twenty pages, Murdoch argued to the state court of
appeal that "while the attorney-chent privilege is
entitled to great deference, the privilege must
nonetheless yield when it clashes with more
compelling Sixth Amendment rights of a criminal!
defendant to confrontation and cross‘examination
Opening Brief at 125. People v. Murdoch, No
NA020621 (Cal. Ct. App. May 22. 1997). He also
‘y »
App. o6
argued that, if the privilege couldn't be forced to
yield, "the constitutionally mandated solution to the
dilemma us to exclude the witness‘ testimony." Jd. at
137 (emphasis in original). In other words, Murdoch
argued that either he should have been allowed to
cross-examine Dinardo about the letter, or Dinardo's
testimony should have been excluded. These
arguments were backed up by plenty of citations to
federal cases hke Douglas vy. Alabama, 380 U.S. 415
(1965), and Davis vy. Alaska, 415 U.S. 308 (1974).
And they were slam-dunks under California cases
like Velav. Superror Court, 208 Cal. App. 3d 141 (Ct.
App. 1989), and People v. Minceyv, 2 Cal.4th 408
(1992), both of which held that the Sixth
Amendment right to confrontation supersedes the
attorney -chent privilege
Murdoch took his appeal to the same court of
appeal that decided Ve/z. and his case was assigned
to the very same division of that court. He opened
his Confrontation Clause argument by citing e/a,
and he even had two of the VFe/a justices on his
panel. Yet they did = not discuss Murdoch's
Confrontation Clause claim or distinguish Ve/a and
Mincev. They simply ignored the issue, devoting not
a single word to it over the course of a detailed
thirty-page opimon that decided every one of
Murdoch's other claims. The court of appeal's
discussions of Murdoch's claims under the Fourth
and Fourteenth Amendments consume almost seven
pages. People v. Murdoch, No. NA20621, ship op. at
6-10, 19-20 (Cal. Ct. App. Mar. 26, 1998). Its
analysis of Murdoch's Ex Post Facto Clause
App. 37
argument takes up almost four pages. /d. at 23°26.
The Sixth Amendment isn't even mentioned
The court of appeal's failure to discuss the
Confrontation Clause 1s all the more conspicuous
because its opimon addressed Murdoch's other
arguments about Dinardo's testimony and the letter:
almost a third of the opimon—nine pages Is
devoted to these topics. Zd. at 14°19. Four and a half
of those are specifically devoted to Murdoch's
complaint that the letter was improperly withheld.
Jd at 14:19. But these pages are filled with
discussions of California evidence law, the nature of
the attorney-client privilege under California law
and various state law objections. None of the cases
the court of appeal cites apply the correct Sixth
Amendment standard or do the relevant analysis.
The Federal Constitution isn't mentioned, the
Confrontation Clause isnt mentioned and
there's definitely no discussion of Douglas, Davis,
Vela or Mincey.
If you wonder how this could have happened,
just read the state's response brief in the court of
appeal. Like the court of appeal's opinion, it cites
neither Vela nor Mincey. The state now here engages
Murdoch's Sixth Amendment claim or so much as
mentions his Confrontation Clause arguments about
the letter. Response Brief at 33-36, Murdoch, Nos
B100877+.
None of this could possibly be Murdoch's fault.
he couldn't have done more to put the court of appeal
App. 38
on notice of his claim. Just look at the table of
contents in his opening brief:
XI. EVEN IF DINARDO'S LETTER
WERE PRIVILEGED, APPELLANT'S
OTH AND 6TH AMENDMENT
RIGHTS TO A FAIR TRIAL AND TO
CONFRONT AND CROSS- EXAMINE
THE CHIEF WITNESS AGAINST
HIM WOULD TAKE PRECEDENCE
OVER DINARDO'S ATTORNEY
CLIENT PRIVILEGE UNDER THE
PARTICULAR FACTS OF THIS
CASE
Id. at v. Murdoch's reply brief even tried to
"respectfully redirect! ] the Court's attention" to the
sections of his opening brief that set out his
Confrontation Clause arguments, ones
that the state's brief had overlooked. Reply Bnief at
54-56 & n.17. sd. Yet the court of appeal still decided
his case without any discussion or acknowledgment
of the Confrontation Clause.
We know they must have overlooked it,
because California appellate courts can't
intentionally skip over any claims: The California
Constitution prohibits it. See 5 Cal. Jur. 3d
Appellate Review § 706: see also Cal. Const. art. VI,
§ 14. To be sure. something as concise as
"Defendant's remaining contentions do not merit
discussion" will suffice. See Lewis vo Superior Court,
19 Cal. 4th 1232, 1261-64 (1999); People v. Rajyas, 118
App. 39
Cal. App. 3d 278, 288-90 (Ct. App. 1981). But
something must be said to indicate that the court 1s
aware of the remaining issues and has resolved,
rather than overlooked, them. The court of appeal in
this case didn't include even a catch-all line and
thus. according to state law, must be presumed to
have overlooked the unaddressed issues.
It's not as though judges arm immune from
making this kind of mistake. £-¢., United States v.
California, 558 F.2d 1347, 1353 (9th Cir. 1977)
(noting on rehearing that “we overlooked” an
argument made “in [the] briefs on appeal" ), rev'd,
438 U.S. 645 (1978): George Pepperdine Found. v.
Pepperdine, 126 Cal. App. 9d 154, 163-64 (Ct. App.
1954) (noting on rehearing that, "Ibly inadvertence,”
the court had "neglected" to distinguish between two
separate demurrers): see also Fed. R. App. P.
4AQ(aX(2); 5 Cal. Jur. 3d Appellate Review § 723
(2009). Truth be told, it happens to all of us once ina
while.
An oversight usually doesn't make a difference
because issues insignificant enough to escape notice
are often meritless. See, e.g., California, 558 F.2d at
1353; Pepperdine, 126 Cal. App. 2d at 164. But
Murdoch had a winning argument based on binding
California case law interpreting the federal
Confrontation Clause—an argument the state
effectively conceded by not responding to it. So, had
the court of appeal actually thought about that
claim. as it was required to, it would have had to
App. 40
grant relief or disregard one of its own cases (Ve/a)
while figuring out some way to distinguish on-point
precedent from the California Supreme Court
(Mincey). Courts just don't do that kind of work in
white ink.
Not California Courts of Appeal at any rate.
The requirement that they show they “necessarily
and carefully analyzed the contentions" in play is no
mere formality. Rojas, 118 Cal. App. 3d at 290. They
can be reversed for disregarding it. See Amwest Sur.
Ins. Co. v. Wilson, 11 Cal.4th 1243, 1266-68 (1995).
The Cahfornia Supreme Court has called this
requirement an "liJmportant incidentl ] of the right
to appeal," one that's "been in existence as to [the
Cahfornia Supreme Court] since the adoption of the
state Constitution of 1879 and as to the Courts of
Appeal since their creation in 1904." People vy.
Medina, 6 Cal.3d 484, 489, 490 n.5 (1972) Gnternal
citations omitted). For us to presume that an
unmentioned claim was rejected on the merits does
not respect state law. It disdains it.
When a California court fails to mention a
claim, at least in catch-all fashion, we can be sure
that it didn't decide the claim. And there is
absolutely no authority for the proposition that a
totally unmentioned, and therefore undecided, claim
can be deemed to have been "adjudicated on the
merits" when state law would treat the claim as
overlooked. See, e.g., 16A Federal Procedure § 41:179
(L. ed., West 2010) ("In making the determination of
whether an issue was ‘adjudicated on the merits’ in
App. 4]
state court, the habeas court inquires into: (1) what
state courts have done in similar cases... ."). The
Supreme Court has held that when a state court
declines to reach an issue because it erroneously
concludes it need not, our review is de novo. Eg.,
Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wiggins
v. Smith, 539 U.S. 510, 534 (2003). It makes no
sense to treat an oversight born of negligence better
than a mistake born of careful, if ultimately
incorrect, reasoning.
b. This case exemplifies the problem with
deferring to the sounds of silence. Had the court of
appeal thought about Murdoch's claim, it would have
realized that binding case law resolved the key issue
in Murdoch's favor. Six years before Murdoch filed
his appeal, the California Supreme Court held that a
trial court erred in upholding an assertion of
attorney-client privilege that conflicted with the
Sixth Amendment. Mincey, 2 Cal.4th at 463-64. The
facts of Mincey will sound familiar: A _ witness,
implicated in the crime for which Mincey was
convicted, testified pursuant to a cooperation
agreement. The witness had communications with
her attorney that, the defense believed, would cast
doubt on her credibility at trial. The defense tried to
question her about those statements, but she
successfully asserted the attorney-client privilege. In
those precise circumstances—where cross-
examination as to attorney-client communications
would have shed light on a witness's bias—the
highest court in California held that the trial court
App. 43
the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3). This upsets the
"delicate balance" struck by AEDPA between
vindicating the rights of criminal defendants and
upholding the authority of state courts as_ the
primary forum for adjudicating’ thes right
Wiliams, 529 U.S. at 436
AEDPA vests the state courts with primary
responsibility for determining whether a prisoner's
confinement violates the Constitution. See id. When
states accept this responsibility—as evidenced by
their adjudication of a petitioner's constitutional
claims on the merits—AEDPA requires us to accord
sreat deference. 28 U.S.C. § 2254(d). When states
don't, AE DPA deference doesn't apply and we must
)
review the claim de novo. E.g., Rompilla, 545 U.S. at
390: Wiggins, 539 U.S. at 534
This scheme preserves the essence of habeas
review announced in Moore v. Dempsey, 261 U.S. 86,
91-92 (1923) (Holmes, J.), because it ensures that
some court is open to review the constitutionality of
a petitioner's custody. But if a federal court defers to
a state that failed to decide a claim, no court a
prisoner may turn to will ever determine if his
custody actually violates the Constitution. |
hypothesis the state courts didn't, and our review
will be limited to determining whether there was an
"unreasonable" constitutional error. See Delgado v
Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). That's
probably why our colleagues in other circuits have
refused to defer in these circumstances. Lye// \
App. 44
Renico, 470 F.3d 1177, 1182 (6th Cir. 2006) (Sutton,
J.); Canaan v. McBride, 395 ¥.3d 376, 382 (7th Cir.
2005) (D. Wood, J.):; Norde v. Keane, 294 F.3d 401,
410 (2d Cir. 2002) (Miner, J.); Gruning v. DiPaolo,
311 F.3d 69, 71 & n.5 (1st Cir. 2002) (Torruella, J.):
Neill vy. Grbson, 278 F.3d 1044, 1053 (10% Cir. 2001)
(Tacha, C.J.), and even less egregious ones, She/ton
v. Purkett, 563 F.3d 404, 408-09 (8th Cir. 2009)
(Beam, J.); Henderson v. Cockrell/, 333 ¥.3d 592, 600-
01 (5th Cir. 2003) Wolly, J.); Fortini v. Murphy, 257
F.3d 39, 47 (st Cir. 2001) (Boudin, C.J.); Hameen v.
Delaware, 212 F.3d 226, 248 (3d Cir. 2000)
(Greenberg, J.); see also Bell vy. Cone, 543 U.S. 447,
460-61 (2005) (per curiam) (Ginsburg, J.,
concurring); Chadwick v. Janecka, 312 F.3d 597,
605-06 (3d Cir. 2002) (Alito, J.).
2. Merits. I would therefore decide Murdoch's
Sixth Amendment claim de novo. Murdoch had no
opportunity to cross-examine effectively the key
prosecution witness about the primary issue
regarding his credibility: whether he wrote a letter
admitting that his testimony against Murdoch was
coerced and untrue. This was not some remote
inconsistency regarding a minor detail irrelevant to
guilt or innocence; this went to the heart of the
prosecution's case. Murdoch's Sixth Amendment
rights were clearly violated. But I would rule for
Murdoch even on the plurality's own terms, because
it would have been an objectively “unreasonable
application of... clearly established federal law .. .
as determined by the Supreme Court" for the
App. 45
California courts to conclude otherwise. 28 U.S.C. §
2254(d)(1).
a. The plurality concludes that the supremacy
of the Sixth Amendment over California's attorney:
chent privilege isn't "clearly established." Pl. op. at
9042. "There are few subjects," however, "upon
which [the Supreme] Court and other courts have
been more nearly unanimous than in their
expressions of behef that the right of confrontation
and cross-examination 1s an- essential and
fundamental requirement for the kind of fair trial
which is this country's constitutional goal." Pointer
v. Texas, 380 U.S. 400, 405 (1965).
In Crawford v. Washington, 541 U.S. 36
(2004), the Supreme Court held up the trial of Sir
Walter Raleigh as an example of what the Sixth
Amendment was” supposed to prevent. Read
Raleigh's fate and = consider’ what's "clearly
established" about the Sixth Amendment:
The most notorious instances of civil-
law examination occurred in the great
political trials of the 16% and 17th
centuries. One such was the 1608 trial
of Sir Walter Raleigh for treason. Lord
Cobham, Raleigh's alleged accomplice,
had imphcated him... . Raleigh
argued that Cobham had hed to save
himself: "Cobham is absolutely in the
King's mercy, to excuse me cannot
avail him; by accusing me he may
App. 46
hope for favour.” . _ [Despite
Raleigh's protestations that he was
being tried "by the Spanish
Inquisition,” the jury convicted, and
Raleigh was sentenced to death
One of Raleigh's trial judges later
lamented that " 'the justice of England
has never been so degraded and
injured as by the condemnation of Sir
Walter Raleigh.’ "
Crawford, 541 U.S. at 44 (citations omitted). This
history is not part of the rule announced in
Crawford. It long predates it. See, e.g. California \
Green, 399 U.S. 149, 157 n.10 (1970)
So, if the Sixth Amendment has been clearly
established to mean anything, it's that the Cobhams
and Dinardos of the world—defendants who
impheate others as accomplices to curry favor with
the sovereign—must either be subject to rigorous
cross-examination or stand mute before the jury.
There is a “basic understanding that when one
person accuses another of a crime’ under
circumstances in which the declarant stands to gain
by inculpating another, the accusation 1s
presumptively suspect and must be subjected to the
scrutiny of cross-examination." Lee v. J///inors, 476
U.S. 530, 541 (1986). There is also a "basic
understanding" that forcing a witness to confront
and explain his prior statements that contradict his
testimony is the gold standard for effective cross:
App. 47
examination. See Harris v. New York, 401 U.S. 222,
223-26 (1971). Nothing can deny a= criminal
defendant the right to have the government's key
witness subject to this examination, certainly not
"the vagaries of the rules of evidence." Crawford, 541
US. at 61. Not even a coordinate constitutional
provision. Harris, 401 U.S. at 225-26.
b. The plurality stumbles into error because it
never takes AEDPA's first step—identifving the
fundamental legal principles announced in_ the
Supreme Court's cases. Instead, the plurality treats
the Supreme Court's Sixth Amendment
jurisprudence like a series of unconnected contests
between the mght to confrontation and a particular
rule of evidence: the Confrontation Clause v. the
marital privilege: the Confrontation Clause v. the
Fifth Amendment: the Confrontation Clause vy.
hearsay: etc. This way of looking at the Supreme
Court's cases is myopic and wrong.
The Supreme Court uses cases with discrete
facts to announce general principles. AEDPA
instructs state courts to reasonably apply those
principles, see Willams v. Taylor, 529 U.S. 362, 412
(2000), which the Court defines as the "fundamenta/
principles established by [fits] most relevant
precedents." Addul-Kabir v. Quarterman, 550 U.S
233, 258 (2007) (emphasis added). "AEDPA does not
require state and federal courts to wait for some
nearly identical factual pattern before a legal rule
must be apphed.” Panett: v. Quarterman, 551 U.S
930, 953 (2007) Gnternal citations and quotation
App. 48
marks omitted): see a/so Lockver vo Andrade. 538
U.S. 63, 76 (2003). The plurality's insistence that
habeas petitioners produce a " 'spotted calf on the
precise issue at hand” has no foundation in law
Bradley vo. Duncan, 315 F.3d 1091, 1101 (9th Cir
2002)
When there's no case on poimt. AEDPA
permits rehef if "a state court either unreasonably
extends a legal principle from [the Supreme Court's]
precedent to a new context where it should not apply
or unreasonably refuses to extend that principle to
ew context Where it should apply." Wilhams, 529
U.S. at 407 (emphasis added). All of the Court's
Confrontation Clause jurisprudence points to one
fundamental principle: Criminal defendants must be
afforded the opportunity to effectively cross-examine
the witnesses against them. £.g.. Davis, 415 US. at
316; Pornter, 380 U.S. at 405: Douglas, 380 US. at
418-20. That, and nothing else, is what needs te be
"clearly established." See Addu/-Aabir, 550 US. at
L080.
We can divine this "fundamental principle”
solely from cases where a hearsay exception or court
procedure prevented effective cross-examination.
e.g, Lillv v. Virginia, 527 U.S. 116 (1999): Cer \
Jowa, 487 U.S. 1012 (1988). Wi/Lams instructs us to
reason analogically, and it would be unreasonable to
refuse to extend the principle established in those
cases to Murdoch's case. The right to’ eross
examination is) “functional,” and the harm t
“rehabihty in truth finding,” Aentucky ve Stincer
App. 49
482 U.S. 730, 737 (1987), caused by denying a
defendant access to a prior inconsistent statement by
the chief witness against him is far greater than the
harm of allowing a witness to testify behind a
screen. Compare Cov, 487 U.S. at 1020, with Lee.
476 U.S. at 541. See also United States v. Ala
i real
]
2VEITIS,
1174. 1184 (9th Cir. 1994)) Burry. Sullivan.
618 F.2d 583, 58
7 (9th Cir. 1980).
But we need not look afield. The Supreme
Court has a specific category of Confrontation Clause
cases that address "restrictions imposed by law or by
the tral court on the scope of cross-examination."
Stincer, 482 U.S. at 737 Unternal quotation marks
omitted). For example. the Court found == a
Confrontation Clause violation where “defense
counsel was restricted by. state confidentiality
provisions from questioning a witness about his
juvenile criminal record, although such evidence
might have affected the witness’ credibility." /d. at
738 (citing Davis, 415 U.S. at 318). Even where the
law that restricts cross-examination 1s a coordinate
constitutional provision hke the Fifth Amendment,
admitting the witnesses’ testimony while upholding
the privilege violates the Confrontation Clause
Douglas, 380 U.S. at 420. The plurality cites no cases
—because none exist—where the Supreme Court
upheld the admission of testimony after a witness
invoked a privilege that prevented "Impeachlment]
by use of his earher conflicting statements.” Harris,
401 U.S. at 226. No such cases exist because “it 1s
axiomatic that the defendant may employ the
witness's prior inconsistent statements in order to
App. 50
impeach" the witness's testimony. United States v
Adamsor, 291 F.3d 606, 612 (9th Cir. 2002).
Ths pluralitv's discussion of whether the
attorney-chent privilege is "worthy of greater
protection” than a state's marital privilege, pl. op. at
9042, is utterly beside the point. Surely neither 1s of
higher digmity than the Fifth Amendment
privilege—the granddaddy of all evidentiary
privileges—-which nevertheless proved insufficient to
overcome the Confrontation Clause in Douglas. 380
U.S. at 420. Even if the attorney-chent privilege
were of the same dignity as the Fifth Amendment.
the need for "cross-examination and impeachment"
would overcome it. ffarrrs, 401 U.S. at 223-26. As in
Harris, it's not an all-er-nothing proposition:
Murdoch could have been allowed to cross-examine
Dinardo based on the letter, but Dinardo could have
been allowed to retain a species of use Immunity, in
that the letter could not then be used by the state
against him in a criminal case. See. e.g., Bittaker v.
Woodford, 331 F.3d 715, 721-25 (9th Cir. 2003) (en
bane); see also People v. Hunter, 2005 WL 1377738.
at *10 (Cal. Ct. App. dune 10. 2005) (khine. J.
concurring).
At any rate, this issue is much simpler than
the plurality makes it out to be. Either an
evidentiary privilege operates to deny an
opportunity for effective cross-examination or it
doesn't: if it does, the Sixth Amendment prohibits
both giving effect to the privilege and admitting the
witness's statements. The privilege may yield or the
App. 51
witness may be excluded, but one or the other has to
give. The bottom line is clearly established by a long
line of Supreme Court cases: A witness may not
testify agaist a defendant in a criminal trial if that
witness cannot be cross-examined effectively.
Swidler & Berlin vy. United States, 524 US.
399, 408 n.3 (1998), is nowhere to the contrary. The
plurality relies on Swid/ers supposed "reservation"
of a question about the attorney chent privilege as
proof that the superiority of the Bill of Rights over
Cahfornia evidence law remains an open question.
Obviously Swid/er didn't make any such reservation.
First, Swid/er was a case about whether the
attorney-chent privilege survived the death of a
chent: it did not deal with a conflict between that
privilege and anvone's constitutional rights. /d. at
401. Second. even the petitioner in Swid/er conceded
that the privilege could be breached when a crimini:
defendant's constitutional rights are imphiecated. /d
at 408 n.3. Third, the Supreme Court did not
"reserve" a Sixth Amendment question for another
day: the Court's opinion contains not a single word
about the Confrontation Clause. The Court simply
noted that it did not "need to reach" the far broader
question of when the attorney-chent privilege must
yield ain the face of a cmmuinal= defendant's
constitutional rights at trial. /d.
But again, all this is beside the point. It
doesn't matter if the attorney-chent privilege turns
out to be the Rock of Gibralter. If it is, the Supreme
Court's cases teach that the testimony of the un-
App. 52
cross-examined witness can't come in. We know this
from Douglas, which dealt with just such an
inviolable privilege—the Fifth Amendment. 380 U.S.
at 420. Nothing in Swid/er calls this remedy into
question, because Swid/er dealt only with whether
the privilege can be breached. The prosecutors there
weren't trying to admit the privileged
communications at trial: they were trying to learn of
their contents in furtherance of an investigation.
c. These "fundamental principles” of the mght
to confrontation have not escaped other federal
courts of appeals. The Second Circuit has held that
"where assertion of the [attorney-client] privilege
unduly restricts a defendant's cross-examination, the
witness’ direct testimony may have to be stricken.”
l/nited States v. Coven, 662 F.2d 162, 170-71 (2d
Cir. 1981). The Seventh Circuit has affirmed that
"the mght of confrontation conferred by the Sixth
Amendment" can trump "[elven privileges recognized
when the Constitution was written," wz. the
attorney-client privilege. United States v. Rainone,
32 F.3d 1203, 1206 (7th Cir. 1994). And the Eleventh
Circuit thinks the same, having held in Jen&zns vy.
Wainwright that "limitations on questioning" based
on the attorney chent privilege are permissible only
to the extent that the court "permitls] cross:
examination sufficiently thorough to satisfy the sixth
amendment." 763 F.2d 13890, 1392 (11th Cir. 1985):
see also Mills v. Singletary, 161 F.3d 1273, 1288
(11th Cir. 1998). Until the plurality wreaked havoc
with our law. we were a comfortable member of this
group. Mfurdoch v. Castro, 365 F.3d 699, 702 (9th
App. 53
Cir. 2004). Many state courts have also recognized
that the attorney-chent privilege may not prevent
effective cross-examination. Most significant of these
for our case is California, see pp. 9052-53 supra, but
it is hardly alone, see State v. Cascone, 487 A.2d
186, 190-91 (Conn. 1985): Neku v. United States, 620
A.2d 259, 262-63 (D.C. 1993). The plurality ignores
these voices by relying on a single footnote in an
irrelevant Supreme Court case. If this is what the
"clearly established law" test requires, then AEDPA
did not limit habeas rehef: it eliminated it.
d. The opportunity to cross-examine is
particularly important when it can "exposle] a
witness’ motivation in testifying." Delaware v. Van
Arsdall 475 U.S. 673, 678-79 (1986) (internal
quotation marks omitted). It's all the more
important when that witness is an accomplice
cooperating with the government. Lee, 476 U.S. at
O41; see also Mayans, 17 F.3d at 1184: Burr, 618
F.2d at 587. And Van Arsdal/ holds—it "clearly
establishes"—that "cutting off all questioning about
an event that the State conceded had taken place
and that a jury might reasonably have found
furnished the witness a motive for favoring the
prosecution in his testimony” violates a defendant's
night to confront the witness. 475 U.S. at 679: see
also Adamson, 291 F.3d at 612.
Here, the state's star witness wrote a letter
that, according to the prosecutor at trial, said "in
sum and substance... that Mr. Dinardo was coerced
by the police into implicating defendant Murdoch in
App. 54
this crime." [TR 249] "A reasonable jury might have
received a_ significantly different impression of
[Dinardo's] credibility” had they heard about it. Van
Arsda/l, 475 US. at 680. The trial judge demed
Murdoch's jury the chance. That means Murdoch's
Sixth Amendment right to confrontation was
violated. Jd.; Davis, 415 U.S. at 318. It would be
unreasonable to conclude otherwise.
When there has been a Confrontation Clause
error, we "cannot [consider] whether the witness’
testimony would have been unchanged, or the jury's
assessment unaltered, had there been confrontation:
such an inquiry would obviously involve pure
speculation.” Coy, 487 U.S. at 1021-22.
Harmlessness "must therefore be determined on the
basis of the remaining evidence.” /d. at 1022. Though
the plurality purports not to reach this issue, there
are rather large hints throughout the opinion that
Murdoch's inability to cross‘examine Dinardo was no
big deal. Nothing could be farther from the truth.
Consider what the trial would have looked
like sans Dinardo. Murdoch has always steadfastly
maintained his innocence. No physical evidence has
ever linked him to the crime. Four witnesses from
the bar testified, but only three even vaguely
recognized Murdoch. [TR 604] And they were highly
equivocal. One patron said: "It's been 13 years. And |
can't be positive.” [TR 625] Another could only say
that Murdoch looked "similar" to the gunman,
because "it was so many years ago." [TR 550, 579]
Though the plurality makes much of the bartender's
App. 55
identification of Murdoch, pl. op. at 9029, she was
shown Murdoch's picture in a_ photo. array
immediately after the robbery and didn't recognize
him. [TR 161] More than a dozen years later, she
points to the only defendant in the courtroom and is
sure it's him. Weak tea. There was no way the
prosecution could have gotten a conviction without a
miracle called Dinardo.
But don't take my word for it; just see what
the trial judge, who presided both over Murdoch's
case and Dinardo's, has to say about it: "[U]nless the
District Attorney has something more, I just wonder
without {Dinardo's] assistance where they're going."
Appendix at 9069. [SER 363] He notes that
Murdoch's prosecutors “have a very difficult case
without [Dinardo's] assistance." /d. [SER 363] That's
why the judge wanted "to be able—that there would
be some agreement that might be beneficial to Mr.
Dinardo and the prosecution." Jd. at 9068. [SER 362]
Just in case this was too subtle to move Dinardo, the
trial judge goes on to explain that he. wants "to do
something different," for Mr. Dinardo, rather than
give him the "set sentence" the law required upon
conviction for first degree murder. /d. at 9069. [SER
363] All of this was, as he acknowledged, "not the
judge's province" and a matter “actually between
attorneys." /d. [SER 363] But the trial judge also
wanted Dinardo to know that "I have 90 days to
change [your] sentence if anything changes in the
way of your mind" about testifying against Murdoch.
Id. (SER 363] Disgraceful.
App. 56
Denying Murdoch the nmght to. confront
Dinardo cannot have been an error harmless beyond
a reasonable doubt. If the state courts held
otherwise—which they didn't—they unreasonably
applied law clearly established by the Supreme
Court
e. The court of appeal did not decide
Murdoch's constitutional claim, so it's unclear
whether the harmless-error standard of Brecht \
Abrahamson, 507 U.S. 619, 631 (1993), applies in
place of the Chapman standard. See Fry v. Piiler
551 U.S. 112, 118-19 (2007). But it makes no
difference. Just as it would’ be objectively
unreasonable to conclude that the error in this case
was harmless beyond a reasonable doubt, see pp
9062-63 supra, it's obvious this error had a
"substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 US. at
631.
The plurality suggests that Murdoch
"succeeded in eliciting testimony that challenged
Dinardo's credibility as a witness,” so any error
couldn't have affected the jury's verdict. Pl. op. at 5
Even if that kind of argument could be made here,
but see Coy, 487 U.S. at 1022, there's a huge
difference between routine impeachment for bias
and specific evidence that a witness has admitted
that his trial testimony is untrue and a product of
coercion from the get-go. The Supreme Court has
long recognized the extraordinary effect that a
witness's own inconsistent statement can have on a
App. 57
jury. In a case addressing confessions, the Court
held that a defendant's own inconsistent statements
are "probably the most probative and damaging
evidence that can be admitted against him." Arizona
v. Fulminante, 499 U.S. 279, 296 (1991) (internal
quotation marks omitted). The same, of course,
would have been true for Dinardo. The letter was
nothing less than a confession that Dinardo had lied
about the central matter of his testimony. No
only that, but the letter would have explained why
Dinardo was lying. It shows it wasn't just the trial
judge's generous deal. The police had pressured him
from the outset.
Plea bargains are cut every day and jurors
know it. A letter ike Dinardo's comes along once in a
hfetime. As Judge Bright put it in his powerful
dissent, "[t]he letter and its disavowal of Murdoch's
involvement in the crime would have been the piece
de résistance, leading inextricably to the conclusion
that Dinardo was not only generally unreliable but
also untrustworthy regarding the one element of his
testimony that the jury (as its verdict demonstrates)
must have believed." Murdoch, 489 F.3d at 1071.
"The concluding question on cross-examination of
Dinardo seems obvious: 'Were you lying then or are
you lying now?’ " /d. Forcing a witness to admit to
the jury that he's a liar is the Holy Grail of cross-
examination. What Murdoch got instead was a paper
cup.
Surely there must be grave doubt whether the
jury would have reached a different result if the
App. 58
letter had been admitted. Murdoch is entitled to a
new trial so that cross-examination—the "greatest
legal engine ever invented for the discovery of truth,"
Green, 399 U.S. at 158 (internal quotation marks
omitted)—can be allowed to do its work.
3. Procedural Default. Judge Silverman
agrees that Murdoch was denied his right to
confrontation, but refuses relief because Murdoch's
trial counsel "never sought to strike Dinardo's
testimony." Concurrence at 9045. Judge Silverman
doesn't contest that Murdoch argued on appeal that
Dinardo's testimony should have been stricken. His
problem with the timing of Murdoch's request must
therefore sound in procedural default rather than
exhaustion. In other words, Judge Silverman seems
to think that, because Murdoch didn't move to
exclude Dinardo's testimony at trial, his objection
came too late—perhaps for failure to obey a
contemporaneous objection rule or the like. State
and federal law of procedural default belie such a
claim.
As far as Ve/a reveals, Murdoch requested at
trial precisely the remedy provided for under
California law. Striking a witness's direct testimony
isn't the on/y way California could have observed the
Sixth Amendment's essential command. Ve/a holds
as a matter of state law that, if necessary to permit
effective cross-examination, California's attorney-
client privilege "must give way." 208 Cal. App. 3d at
150. That's exactly what Murdoch asked for at trial.
App. 59
1 also doubt whether the Cahfornia courts
would have held Murdoch to any default, if default
there was. California law says that "la] defendant is
not precluded from raising for the first tame on
appeal a claim asserting the deprivation of certain
fundamental, constitutional rights." People v. Vera,
15 Cal.4th 269, 276-77 (1997); see also People v.
French, 43 Cal.4th 36, 46-47 (2008). And even if the
California courts would ordinarily have held that
Murdoch's claim was procedurally defaulted, the
trial judge's conduct in this case might have excused
any default. See People v. Hill, 17 Cal.4th 800, 820-
22 (1998). These uncertainties would make me think
long and hard whether, if California would hold that
Murdoch somehow procedurally defaulted his claim,
that's an "independent and adequate" procedural bar
to federal relief. C£ Townsend v. Knowles, 562 F.3d
1200, 1207-08 (9th Cir. 2009). I would also have to
consider whether Murdoch can excuse any default by
showing cause and prejudice, particularly in light of
the trial judge's conduct. Cf Cook vy. Schriro, 538
F.3d 1000, 1025-26 (9th Cir. 2008).
But I need not reach any of these difficult
issues because procedural default is "'an affirmative
defense, and the state has the burden of showing
that the default constitutes an adequate and
independent ground’ " for denying relief. Scott v.
Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (quoting
Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir.
2005)) (emphasis in original). California didn't argue
to the district court, and it hasn't argued to us, that
the state courts rejected Murdoch's Confrontation
App O60
Clause claim on a procedural ground (or even that
they should have). Nor has the state argued, as
Judge Silverman would hold, that} Murdoch was
required to request exclusion of the witness at trial
and that his failure to do so bars him from obtaining
federal relief. That's the end of the road for any
theory that Murdoch should be denied relief because
he didn't ask for a particular remedy from the state
trial court. Chaker v. Crogan, 428 F.3d 1215, 1220
21 (9th Cir 2005) Habeas courts do not scour the
record in search of every conceivable defect im a
petitioner's presentation of a claim to the state
courts. Ve/a is but one example of why: What we
might require to preserve a claim is not always what
the state courts would require Compare
Concurrence at 9044-45 with Vela, 208 Cal. App. 3d
at 15]
California as satished with the procedural
posture of this case. We are in) no position to
disagree
Today we become the only court in the country
to hold that a state court may adjudicate a
constitutional claim "on the merits" by overlooking
it, and then have its carelessness rewarded with
AKDPA's presumption that. its adjudication was good
enough for government work. We defer to a decision
the state courts never made to reach a result that
the state's highest court disagrees with. We fail to
give effect to the plain meaning of the Confrontation
App. 61
Clause—one of the best-established principles of
Anglo-American law on the ground that it isn't
"clearly established." Any one of these errors would
be remarkable, but their combination produces a
truly spectacular miscarriage of justice
The purpose of AH DPA is to allow state courts
to operate in good faith. So, in the ordinary case,
when a defendant has an unbiased judge and the
state courts take his constitutional claims seriously,
we must defer even if we disagree on the merits. But
this isn't an ordinary case. The state trial judge
coerced a key witness into testifying and the state
appellate judges never addressed the key claim on
appeal. Cases hike this are the reason federal habeas
exists. When a federal constitutional claim falls
through the cracks of a. state's criminal justice
system, federal courts must be there to catch it. No
one else can. Charles Murdoch certainly deserved
better from the California courts. Ultimately,
though, it is we who surely did let him fall.
App. 62
Appendix
LONG BEACH, CALIFORNIA; WEDNESDAY,
SEPTEMBER 20, 1995
PM. SESSTON
DEPARTMENT SOUTH KO HON. CHARLES D
SHELDON, JUDGI
(APPEARANCES AS HERETOFORE NOTED.
CTH FOLLOWING PROCEHEDINGS Wilekt tibet.)
IN OPEN COURT)
THE COURT: MR. DINARDO IS BEFORE
THE COURT. THE LAWYER IS HERE, TOO, MR
PULLER. MR. CARBAUGH IS HleRIe FOR THI
PMOPLIE
Wk HAVE CONTINUED THIS A NUMBER
OF PIMES
MR. FULLER: JUSTONE MOMENT, YOUR
HONOK
THe COURT: GO AHHAD
(THE DEFENSE COUNSEL SPEAKS WITH
HUIS CLIENT SOTTO VOICE.)
App. 63
MR. FULLER: Wk ARE READY TO
PROCKED
THE COURT: THIS COURT WOULD LIKI
TO BE ABLE -- THAT THERE WOULD BE SOME
AGREEMENT THAT MIGHT BE BENEFICIAL TO
MR. DINARDO AND THE PROSECUTION, BUT
WHAT I'VE HEARD INFORMALLY I5
APPARENTLY WE'RE GOING FORTH WITH THI:
SENTENCING
IS THAT TRUE, MR. FULLER?
MR FULLER: YES, YOUR HONOR, THAT
IS
THE COURT: OKAY
MR. CARBAUGH: AND ECAN SAY THE
PEOPLE ARE READY FOR SENTENCING. | CAN
ALSO SAY THAT MR. FULLER AND | HAVE
HAD MANY DISCUSSIONS THAT I KNOW H's
COMMUNICATED TO MR. DINARDO, AND MR
DINARDO HAS CHOSE 'TO PROCEED THE WAY
App. 65
MINUTE. BUT, TO MY KNOWLEDGE, I DON'T
KNOW OF ANY OTHER EVIDENCE. THEY HAVE:
A VERY DIFFICULT CASE WITHOUT YOUR
ASSISTANCE. BUT THAT'S ACTUALLY
BETWEEN ATTORNEYS, AND UPS NOT THI
JUDGE'S PROVINCE.
I WAS HOPING THERE WOULD BE A
RESOLUTION SO THAT | COULD SENTENCE
YOU TO SOMETHING LESS, WHICH 1 WOULD
PREFER TO DO FROM EVERYTHING ABOUT
THIS CASE, ESPECIALLY THE LENGTH OF
TIME AND ALL THE YEARS THAT YOU LIVED
WHAT APPEARS TO BE A LAW-ABIDING LIFE
BEFORE YOU GOT ARRESTED.
UNFORTUNATELY FOR YOU, TECHNOLOGY
HAS ADVANCED TO THe POINT WHERE YOU
GOT ARRESTED WAY LATE IN ‘THE GAMIs¢
THE COURT MUST IMPOSE 25
YEARS TO LIFE FOR THE CONVICTION OF THE
JURY. THAT'S WHAT IMPOSE. TWILL STAY
THE 12022 ALLEGATION. IT THINK IPS ON
YEAR. THAT STAY
App. 66
WILL BECOME PERMANENT WHEN YOU
SERVE THE TERM THAT YOU ARE GOING TO
HAVE TO SERVE UNLESS SOMETHING
CHANGES IN THE NENT 90 DAYS.
$200 RESTITUTION FINE. 13967
AOVERNMENT CODE.
WHEN YOU ARF RELEASED ON
PAROLE, ANY VIOLATION OF TERMS AND
CONDITIONS OF PAROLE OR ANY LAW, YOU
COULD GO BACK TO PRISON FOR ADDITIONA,
TIME DURING THE TIME YOU ARE ON PAROLE
ADDITIONALLY, 1F YOU WANT TO
APPEAL THE CONVICTION, THE SENTENCE OR
BOTH, DON'T HAVE THE MONEY TO DO SO, AN
ATTORNEY WILL BE APPOINTED FOR YOU TO
PILE THE APPEAL BETWEEN NOW AND 60
DAYS FROM NOW. AND APPLY FOR AN
ATTORNEY, IF YOU WANT ONE, TO THE
DISTRICT COURT OF APPEALS.
MR. FULLER? YOUR HONOR, SO THE
RECORD IS COMPLETE. | AM AT THIS TIME
App OY
IhILED MARCH 7, 2005]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
CHARLES ) Civil No. CV-99-06900-
MURDOCH. ) RSWL (Me)
Petiiiones. THIRD REPORT AND
" ’ RECOMMENDATION
| ’ OF UNITED STATES
ROY CASTRO. ’ MAGISTRATE JUDGE
Warden, et al., . ONA PETITION FOR
Resecauedan ’ WRIT OF HABEAS
’ CORPUS BY A PERSON
IN STATE CUSTODY
This Third Report and Recommendation is
submitted to the Honorable Ronald S.W. Lew,
United States District Judge, pursuant to the
provisions of 28 U.S.C. § 636 (b) (1) (B) and General
Order 194 of the United States District Court for the
Central District of California. For the reasons
discussed below, the magistrate judge recommends
that the court deny the present petition on the
merits with prejudice.
BACKGROUND
The petitioner is a state prisoner at the High
Desert State Prison in Susanville, California.
On December 28, 1995, after a tmal in the Los
Angeles County Supenor Court, a jury found the
and ‘ttempt .
Dism
petitioner mmitted tl aurd
iT t j
engaged
and burglar nd that nD)
armed wit! Sreari Motion 1 .
On February Or +} ty
petitioner |
with
[Mot
Appeal di | the petition for \ c |
[Mot I |),
appeal, the California |
trial irt judgement beth
attempted murde1
judgment in a
Exh. D
review I tf
Disn x}
Supreme | rt den
\Mot:
App. 72
On March 8, 2002, the district judge caused to be
entered a judgment denying the petition on the
merits.
The petitioner appealed.
On April 5, 2004, the Ninth Circuit Court of
Appeals in a published opinion vacated the judgment
and remanded the action to the district court for
further proceedings. Murdoch v. Castro, 365 F.3d
699 (9 Cir. 2004).
STATEMENT OF FACTS
The following facts are taken from the reported
decision of the Ninth Circuit Court of Appeals:
Petitioner Charles Murdoch is currently serving a
life sentence without possibility of parole in the
California penal system for convictions of first
degree murder and attempted murder. The
convictions are based upon a murder which occurred
in 1983 while four people were committing a robbery
in the Horseshoe Bar in Long Beach California. One
bystander was shot and killed; another was stabbed
and wounded. After an initially fruitless
investigation, the case was designated an unsolved
crime. The investigation remained dormant until
1994, when the Long Beach Police Department had
acquired the necessary technology to access a
previously inaccessible central fingerprint database
and ran the prints on file in this case. That led to
the identification of Dino Dinardo as one of the
robbers. The Horseshoe's bartender, Dyanne
Spence, then tentatively identified Dinardo, and he
was arrested in June 1994.
App. 73
When first questioned by a police detective,
Dinardo denied any involvement in the incident.
Under pressure from the police, however, he then
recanted, admitted to his involvement in_ the
robbery, and identified Charles Murdoch, the
petitioner, as one of his accomphces. The District
Attorney eventually charged both Dinardo and
Murdoch with murder accompanied by special
circumstances, crimes carrying possible sentences of
life imprisonment without parole.
Dinardo was tried by himself and convicted by a
jury of first-degree murder and sentenced to twenty-
five years to life. At Dinardo's sentencing, however,
the sentencing judge suggested that his sentence
might be subsequently reduced if he cooperated and
testified against Murdoch. Dinardo took the hint
and agreed to testify against Murdoch in return for a
reduction of his _— conviction to voluntary
manslaughter with a sentence of twelve years.
At Murdoch's trial, Dinardo testified that on the
day of the robbery, Murdoch came by his house with
an unidentified Mexican-American man Dinardo did
not know and asked if Dinardo wanted to make some
money by doing "a job," which he understood to
mean committing a hold-up. Dinardo was to grab
the money out of the till while the others, who would
be armed with a gun and a knife, kept watch.
Another unidentified Mexican-American man was
driving the car they rode in to the bar. Murdoch
entered the bar armed with a .22 caliber rifle and
announced the robbery. Dinardo jumped across the
bar and took two hundred dollars out of the register,
App. 74
at which time he heard a shot. He left through the
back door and they all divided the money. Dinardo
testified that he did not know anyone was hurt until
he was questioned by the investigators in 1994.
In addition to Dinardo, witnesses from the bar
also testified, including bartender Spence. After
Murdoch's arrest in 1994, Spence identified him in a
line-up, but she and others had been’ unable
positively to identify Murdoch in photo arrays eleven
years earlier, on the heels of the robbery. The record
strongly suggests that without Dinardo's accomplice
testimony, the prosecution's case against Murdoch
was weak.
Murdoch used Dinardo's reduced sentence and
lesser conviction to impeach him, but here's the rub.
Prior to opening statements, the prosecutor informed
the trial court and defense counsel she’ had
discovered the existence of a letter, apparently
written by Dinardo to his attorney, in which Dinardo
allegedly exonerated Murdoch and claimed that his
own statements to the contrary had been coerced by
the police. The prosecutor claimed never to have
possessed or actually seen the letter. She knew of its
existence only through an interview with Dinardo.
The letter, it turned out, was in the possession of
Dinardo's attorney, who asserted on Dinardo's behalf
that it was protected by the attorney-client privilege.
The trial court took possession of the letter without
allowing Murdoch's counsel or the prosecutor to see
it and ruled after reading it that Dinardo was
entitled to the privilege. The court did so without
mention of the constitutional guarantee now at
App. 75
issue. After so ruling, the court returned the letter
to Dinardo's attorney and ordered that he safekeep 11
in case of appeal.
One direct appeal, and in his petitions for state
post conviction and federal habeas relief, Murdoch
raised, unter alfia, his claim that the trial court's
failure to allow him to see or use the privileged letter
violated his right to confrontation. The California
Court of Appeal denied relief, and the California
Supreme Court dechned his) petition for review
Petitioner's federal habeas petition was denied by
the district court. This circuit pranted a Certificate
of Appealability limited to the issue of "Whether
appellant's federal constitutional rights were
violated when the trial court ruled that prosecution
witness Dinardo's letter was protected by attorney
chent privilege." Murdoch v. Castro, 365 F.3d at
700-702.
DECISION OF THE
NINTH CIRCUIT COURT OF APPEALS
The Ninth Circuit’ construed the petitioner's
claim as one under the Confrontation Clause of the
Sixth Amendment. The petitioner asserted that he
had been deprived of the right to effective cross
examination of Dino Dinardo when the trial court
sustained Dinardo's claim of attorney-client privilege
and prevented disclosure of a letter which Dinardo
wrote to his lawyer while in jail awaiting trial. The
Ninth Cireuit held that this factual situation
presented:
"a situation where a substantial showing has
been made that, depending upon the content of
App. 76
Dinardo's letter, the Confrontation Clause and
attorney-chent. privilege are potentially at odds -- a
set. of facts the Supreme Court has not yet examined.
Its precedents, however, clearly provide that
evidentiary privileges or other state laws must yield
if necessary to ensure the level of cross-examination
demanded by the Sixth Amendment."
Murdoch v. Castro, 365 F.3d at 702, citing Olden v.
Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102
L.ld.2d 513 (1988), Delaware vo Van Arsdall, 475
U.S. 6738, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986);
Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 39
L.Ed.2d 347 (1974); and Douglas v. Alabama, 380
U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
Kssentially, the Ninth Circwt held that the
attorney-chent privilege might have to yield in a
particular case if the mght of confrontation would be
violated by enforcing the privilege. Murdoch v.
Castro, 365 F.3d at 703, citing United States v.
Rainone, 32 F.3d 1203, 1206 (7 Cir. 1994). "The
court must ultimately decide whether the probative
value of the fexcluded] alleged — privileged
communication was such that the defendant's mght
to effective cross examination was) substantially
diminished.". Murdoch v. Castro, 365 F.3d at 703,
quoting United States ex rel. Blackwell v. Franzen,
688 F.2d 496, 501 (7 Cir. 1982).
The Ninth Circuit decision concluded:
Without knowing the contents of the letter, or
seeing any evidence that the contents were
examined by the state courts during Mudoch's post-
conviction rehef proceedings, the federal courts are
App. 77
not able to determine whether or not the Califorma
Court of Appeal's decision "was contrary to, or
involved an unreasonable application of, clearly
estabhshed Federal law, as determined by the
Supreme Court of the Umited States: or (2) resulted
in a decision that was based on an unreasonable
determination of facts in lhght of the evidence
presented in the State court proceeding." 28 U.S.C.
§ 2254 (d). Similarly, without the letter, we are
unable to determine in the first instance whether, in
this case, the attorney-chent privilege "must fall
before the right of petitioner to seek out the truth in
the process of defending himself." Davis, 415 US. at
320, 94 S.Ct. 1105. We will not "require yielding of
so vital a constitutional right as the effective cross
examination for bias of an adverse witness,” where
neither the state nor federal courts actually
reviewed the privileged material on habeas and
made a decision as to its relevant probative value.
la.
We now vacate the district court's denial of
Murdoch's § 2254 petition, and remand this case to
the district court. We instruct the district court to
use its process to obtain the letter. Once the letter is
obtained, the district court shall then determine in
camera and as the court deems appropriate whether,
as apphed to the totality of facts in this case, the
denial of access to Dinardo's letter resulted in an
unconstitutional denial of Murdoch's = Sixth
Amendment right to confront witnesses
Murdoch v. Castro, 365 F.3d at 706.
App. 78
THE LETTER
Pursuant to the directive of the Ninth Circuit
Court of Appeals, the magistrate judge has reviewed
the letter at issue in camera. The letter is a two
page handwritten letter signed by Dino Dinardo,
dated December 1, 1994, attached to a copy of what
appears to be the face of an envelope in which the
letter was originally enclosed. The envelope 1s
addressed to "Kenneth Starr [sic] & Nelda Barrett."
The handwriting addressed to "Kenneth Starr” on
the face of the envelope appears to be different from
the handwriting used to write “Nelda Barrett.”
"Kenneth Starr" is written in cursive script. "Nelda
Barrett" is written in block printed letters. Attorney
Ken Star is or was a Deputy Public Defender who
represented Dino Dinardo at the preliminary
hearing in this action on December 8 and 12, 1994.
ICT, p. L.] Attorney Nelda Barrett 1s or was a
Deputy Alternate Public Defender who represented
petitioner Murdoch at the same preliminary hearing.
(CT, p. 1]
The letter is subject to a claim of privilege, a
claim which has been sustained by the state courts. !
If this court were explicitly to disclose the contents of
The Ninth Circuit opimon points out that a federal
habeas court cannot review the propriety of a claim of privilege
based upon the state law of evidence. Murdoch v. Castro, 365
F 3d at 703. n. 1. Thus, this court cannot properly explore
whether Dinardo waived his claim of privilege by addressing or
possibly distributing the letter to Murdoch's counsel, Nelda
Barrett. The Califormia Court of Appeal discussed this issue
and concluded that there was no waiver. [Respondent's Motion
to Dismiss, filed January 15, 2000, Exh. D., p. 232-3
App. 79
the letter, the privilege would irrevocably be
breached. To preserve the privilege as best is
possible, the magistrate judge will not now disclose
the exact text of the letter. However, at a later point
in this Third Report and Recommendation, to
accomplish the task the Ninth Circuit assigned to
this court, the magistrate judge discusses and
analyzes the assertions in the letter to determine the
“probative effect" of the letter. It should suffice at
this point to say that the letter contains factual
assertions regarding petitioner Murdoch's
participation in the robbery-murder which sare
inconsistent with and which contradict Dinardo's
trial testimony and Dinardo's statement to the police
upon his arrest on June 30, 1994.
PROCEEDINGS IN THE STATE TRIAL COURT
The proceedings in the trial court regarding
disclosure of the December 1, 1994 letter were as
follows. Before opening statements in the trial, the
prosecutor informed the court and _ petitioner's
counsel that, during an interview with Dinardo, she
had been told of the existence of a letter from
Dinardo. The prosecutor stated that she had not
actually read the letter. However, she believed that
the letter said that "Dindardo was coerced by the
police into implicating Defendant Murdoch in this
crime." [RT 249]
The petitioner's trial counsel was aware of the
existence of the letter, but not of its contents. Before
Dinardo testified, the petitioner's counsel! stated his
behef that Dinardo's lawyer, Jack Fuller, had the
letter. The petitioner's counsel requested the court
F :
App. 80
to order Fuller to produce it. Mr. Fuller asserts
claim of work product. The trial judge orderea
Fuller to deliver the letter to the court for its review
[RT 728.] Fuller then produced the letter, notin:
that it was delivered to Dinardo's previous lawye1
Mr. Star. [RT 751.] Fuller also noted that th
envelope accompanying the letter was also address«
to Ms. Nelda Barrett, the petitioner's previous
lawyer. Fuller asserted a claim of attorney-client
privilege and the work product doctrine with respi
to the letter. [RT 751]. After reviewing the content
of the letter, the trial judge held that the attorney
clhent privilege applied to the letter. [RT 768.] Th
trial judge further stated: "I see no exception to thi
attorney-client privilege, in my opinion, it's inviolati
insofar as these facts are concerned... ." [RT 7691]
The trial judge ordered Mr. Fuller to retain th
letter in his possession in case it was needed in
further proceeding. [RT 769.]
PROCEEDINGS IN THE
In some manner that is not clear on the record
before this court, the December 1, 1994 letter was
submitted under seal to the Calhfornia Court
Appeal while that court considered the petitioner
appeal and state habeas petition. Pursuant to thi
court's order, the sealed manila envelope from thx
Cahfornia Court of Appeal and the letter contained
therein have now been deposited with this court
The outside of the sealed envelope contains what
appears to be the signatures of various justices of th
‘
App. 82
contradicted the version of events which Dinardo
told at trial -- and at the time of his arrest -- with
respect to apellant's culpability." In his habeas
petition, Murdoch asserts the letter did even more
because it “substantively exculpates petitioner." We
are not persuaded. "{I]t is patent that the attorney:
chent privilege is not one to be easily discarded
merely because a defendant asserts that invocation
of the privilege results in the denial of his nght to a
fair trial." (People v. Godlewski (1993) 17
Cal.App.4' 940, 947.) "[Wle conclude that only the
most extraordinary circumstance would justify
disclosure of privileged communications between
lawyer and chent ...." Ud, at p. 945.) We do not
find such an extraordinary circumstance here. [lId.,
Exh. D, pp. 234-35.] This is the entire discussion by
the California Court of Appeal of the petitioner's
claim of a right of access to the contents of the
December 1, 1994 letter.
DISCUSSION
The Ninth Circuit Court of Appeals ordered this
court:
(1) to obtain the December 1, 1994 letter and to
discover its contents in camera;
(2) to determine whether the contents of the
letter were examined by the state courts during the
petitioner's post-conviction proceedings;
(3) to determine whether the decision of the
California Court of Appeal was contrary to, or
involved an unreasonable application of, clearly
established federal law as established by the
App K 4
Supreme Court of the United States or resulted in a
decision that was based on an_ unreasonable
determination of facts in the light of the evidence
presented in the State court proceeding; and
(4) to determine whether the denial of access to
Dinardo's letter resulted in an unconstitutional
denial of petitioner Murdoch's Sixth Amendment
right to confront witnesses.
Contents of the Letter
Long Beach police officers arrested Dino Dinardo
in Berkeley, California on June 30, 1994. [RT 907.]
After his arrest, Dinardo made a_e statement
inculpating petitioner Murdoch. [RT 921, 924-5.]
Dinardo wrote the letter at issue in the present
petition on December 1, 1994, a week or so before the
joint preliminary hearing for Dinardo and Murdoch,
which was heard on December 8 and 12, 1994.
Murdoch's trial was in December of 1995. Dinardo
testified at Murdoch's trial that Murdoch planned
the robbery, that Murdoch recruited Dinardo as a
participant in the robbery, that Dinardo and
Murdoch committed the robbery, and that Murdoch
shot and killed one of the bar patrons during the
course of the robbery.
This court has read Dinardo's December 1, 1994
letter. The letter flatly contradicts Dinardo's June
30, 1994 statement and Dinardo's trial testimony
regarding Murdoch's participation in the robbery-
murder. The letter states that Dinardo never
committed any crime with Murdoch. If the contents
of the letter had been disclosed at trial to Murdoch's
trial counsel, it is clear that trial counsel would have
App. 86
This court thus answers the second and third
questions put to it by the Ninth Circuit Court of
Appeals as_ follows: The trial court and _ the
Cahfornia Court of Appeal both read the December
1, 1994 letter of Dinardo to his counsel. After
reading the letter, the trial court declined to order
disclosure of the letter because, in its view, the
attorney-client privilege is "inviolate" or, in effect,
absolute. The California Court of Appeal declined to
order disclosure of the letter on the ground that
there existed no “most extraordinary circumstance"
justifying disclosure. This holding was not based on
a process of weighing Murdoch's right to confront
witnesses against Dinardo's attorney-client
privilege.
In its opimion in Murdoch v. Castro, the Ninth
Circuit held that the precedents of the United States
Supreme Court "clearly provide that evidentiary
privileges or other state laws just yield if necessary
to ensure the level of cross-examination demanded
by the Sixth Amendment. ld. at 702. By declining
to consider whether, on the facts of this case,
Murdoch's right of confrontation trumped Dinardo's
right of non-disclosure of privileged communications,
the decision of the California Court of Appeal "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). That, however, does not end the
inquiry. This court must determine whether
Murdoch's right of confrontation was violated on the
facts of this case
App. 87
Probative Value of Dinardo's Letter
To this point in time, the petitioner's claim
regarding Dinardo's December 1, 1994 letter to his
lawyer has been reviewed, in sequence, by the
California Supenor Court, the Calfornia Court of
Appeals, the California Supreme Court, this court
and the Ninth Circuit Court of Appeals. Until now,
no court has attempted to determine whether the
petitioner's right of confrontation was violated by
failure to allow the petitioner to read an use the
letter at trial. Because no court has yet made that
determination, this court must now make it
The Ninth Circuit decision in this matter stated
that the ultimate issue for this court to determine is
whether, on "the totality of facts in this case, the
denial of access to Dinardo's letter resulted in an
unconstitutional denial of Murdoch's Sixth
Amendment right to confront witnesses.". Murdoch
v. Castro, 365 F.3d at 706. In making a decision
regarding that ultimate issue, the Ninth Circuit
stated that the court must make "a decision as to
[the] relevant probative value" of Dinardo's letter. Id.
at 706. It thus appears that the Ninth Circuit
adopted the test which it quoted in an earlier portion
of its opinion. "The court must ultimately decide
whether the probative value of the lexcluded] alleged
privileged communication was such that’ the
defendant's right to effective cross examination was
substantially diminished." Id. at 703, quoting
United States ex rel. Blackwell v. Franzen, 688 F.2d
at 501. This court thus proceeds to determine the
probative value of the Dinardo letter
App. 88
Making this determination inevitably involves
disclosure of more of the contents of the letter. A
determination of the probative value of the letter
involves an analysis of the factual assertions in the
letter and a comparison of those factual assertions
with facts admitted in pre-trial or trial testimony.
following facts:
(1) After Dinardo's arrest in’ Berkeley, Long
Beach Police Detective Pavek coerced a statement
from Dinardo by promising not to charge Dinardo in
exchange for Dinardo's statement;
(2)In this statement, Dinardo was forced to
identify petitioner Murdoch as a participant in the
crime;
(3) Dinardo does not actually know Murdoch
although Dinardo is aquainted with Murdoch's
brother; and
(4) Murdoch and Dinardo did not commit any
crime.
yd
The opinion of the Ninth Circuit ordered this court, on
the one hand, to review the letter in camera and, on the other
hand, to determine the relevant probative value of the letter.
Murdoch v. Castro, 365 F.3d at 706. This court issues its
opinions 1n public documents. The court cannot fully maintain
the privileged nature of the letter, while publicly discussing the
relevant probative value of the letter. The best that can be
done to accomplish the somewhat conflicting mandate of the
Ninth Circuit ts to refrain from publishing the exact words of
the letter, while summarizing and discussing the factual
assertions stated therein.
App. 89
Detective Ronald Pavek testified at the trial that
he made no promises to Dinardo during the June 30,
1994 interview:
There were no promises made to that man
[Dinardo] ever.
In fact, we were very emphatic in the oral
interview. I am not empowered to do anything. This
is a murder-robbery We're talking about here, and
the best way to help himself was to tell me exactly
what happened.
There was never any inferences made, there was
never any promises made that if you cooperate with
us, everything wall go easier.
We don't do that. We can't do that. We are not
allowed to do that. And 1 couldn't do anything for
him anyhow. I'm just a policeman.
[RT 917, lines 5-15.] Detective Pavek testified that,
during the June 30, 1994 interview, Dinardo kept
referring to a person named "Charles or Chuckie".
[RT 921.) Eventually, Pavek recalled that Pavek
had a group of photo mug shots in his file from the
earher investigation in 1983. Pavek showed those
photos to Dinardo, including a photo of petitioner
Charles Murdoch. Dinardo grabbed the photo of
Murdoch and said, "That's him, that's Charles." [RT
925.) Dinardo turned the photo over and saw
Murdoch's name written on the back of the photo.
Pavek testified that "He [Didonato] said Murdock
[sic] Murdock that's it." [RT 926.]
Dinardo testified at the petitioner's trial that,
during Detective Pavek's interview with Dinardo on
App. 90
June 30, 1994, Dinardo hoped to get released
Gradually, as the interview went on, Dinardo knew
he would not be released. [RT 860-2, 860-7, 860-9.]
John Murdoch, the brother of petitioner Charles
Murdoch, testified at the trial. John Murdoch 1s two
vears older than his brother, Charles. [RT 664.]
When John Murdoch was 13 years old, Dino Dinardo
played in the same neighborhood as John and
Charles Murdoch. [RT 665, 667.]
Witness Patrick Condon testified at) petitioner
Murdoch's trial. Condon was Murdoch's former
roommate, sharing a house with Murdoch in the
time between 1980 and 1983. [RT 712-13.] Condon
knew Dino Dinardo to be a fmend of Charles
Murdoch. [RT 712.) When Condon and Charles
Murdoch hved together, Dinardo would come over
and visit Charles Murdoch. [RT 713.]
Investigating police officers collected fingerprints
from the area of the bar cash register after the
robbery-murder. [RT 162, 890-91.] | Fingerprints
taken from the scene of the crime were matched to
Dino Dinardo in 1994. [RT 898-99.]
The four factual assertions in the December 1,
1994 letter were: (1) that the police coerced Dinardo:
(2) to ineulpate Murdoch; (3) with whom Dinardo
was unacquainted: (4) in circumstances in which
Murdoch and Dinardo did not commit any crime. Of
these assertions, tmal testimony rebutted the first
three, and half of the fourth, leaving only the
assertion that Murdoch did not commit the crime. In
these circumstances, the excluded letter does not
appear to have significant probative value. Most
strikingly, if the petitioner had been able to present
the contents of Dinardo's letter to a jury, the
petitioner would necessarily have had to contend
that Dinardo's trial testimony was false while the
contents of the letter were true However, the
petitioner's own brother and his tormer roommate
testified that Dinardo and Charles Murdoch were
friends. The statement in the letter that letter that
Dinardo did not know Charles Murdoch was false,
given the testimony of the petitioner's own brother
and his roommate. Moreover, at least half of the
statement in the letter that Murdoch and Dinardo
had not committed any crime was demonstrably
false. Dinardo's fingerprint was found on or near the
bar cash register. Dinardo's denial of involvement in
the crime was thus patently false The clear
falsehoods undermine the credibility of every othe:
statement in the letter
The essential value of the December 1, 1994
letter to petitioner Murdoch was as a= prior
inconsistent statement of Dinardo to impeach
Dindardo's trial testimony that Murdoch committed
the robbery-murder. The letter contains a pre-trial
statement of Dinardo stating that Murdoch was not
involved in the robbery-murder. Admission of that
statement into evidence in isolation clearly would
have benefitted Murdoch. However, other factual
statements in the letter were either contradicted by
trial testimony (the assertion that the police coerced
the June 30, 1994 statement from Dinardo and
coerced Dinardo to inculpate Murdoch) or were
demonstratively false in the hght of other testimony
(the assertions that Dinardo was not acquainted
App. 92
with Murdoch and that Dinardo had not committed
any crime). The letter is the only evidence of a prior
inconsistent statement of Dinardo — regarding
Murdoch's involvement in the’ robbery-murder.
However, taken as a whole, the intrinsic probative
value of the letter was and is low.
If Murdoch had been able to use the letter to
impeach Dinardo at trial, the impeachment value of
the letter would have been markedly attenuated
because of the nature of the facts Dinardo asserted
in the letter. The court concludes that, given the low
intrinsic probative value of the December 1, 1994
letter, the petitioner's right to effective cross:
examination at the trial was not’ substantially
diminished by the trial court's exclusion of the letter
from evidence. United States ex rel. Blackwell v.
Franzen, 688 F.2d at 501.
Prejudice
Kiven if the court were to find that the December
1, 1994 letter had significant probative value and
that exclusion of the letter constituted a violation of
the Confrontation Clause, the court must. still
determine if the petitioner suffered prejudice as a
result of the trial court's exclusion of the Jetter from
evidence. <A constitutionally improper denial of a
criminal defendant's opportunity to impeach a
witness, like other Confrontation Clause errors, 1s
subject to harmless error analysis. Delaware v. Van
Arsdall, 475 U.S. at 684. "[T]he demial of the
opportunity to cross-examine an adverse witness
does not fit within the hmited category of
constitutional errors that are deemed prejudicial
every case." Id. at 682
On habeas review of trnial-type errors such as that
alleged here, this court must apply the harmless
error standard set forth in Brecht v. Abrahamson,
507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.BEd.2d 353
(1993). See Shumway v. Payne, 223 F.3d 982, 986
(9th Cir. 2000); Bains v. Cambra, 204 F.3d 964, 976
77 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct
627, 148 L.Ed.2d 536 (2000). Brecht forbids a grant
of habeas relef for a trial-type error unless the error
had a "substantial and injurious effect or influence
in determining the jury's’ verdict." Brecht \
Abrahamson, 507 U.S. at 637
"When a federal judge in a habeas proceeding is
in grave doubt about whether a trial error of federal
law had a ‘substantial and injurious effect or
influence in determining the jury's verdict,’ that
error is not harmless. And, the petitioner must win."
O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct
992, 130 L.Ed.2d 947 (1995)
Kven if the failure to admit the letter at issu
violated the Confrontation Clause, the error in
failing to admit the letter was harmless. As the
court has stated above, three and half out of the four
assertions in Dinardo's letter were either
controverted or proved to be demonstrably false at
trial. Given these facts, the probative value of the
letter was not substantial. In these circumstances
this court should not harbor a grave doubt whether
if the letter had been admitted into evidence and
onsidered by the jury. the jury would have reached
Aici ¥
App. 94
a different verdict and acquitted petitioner Murdoch
of the robbery-murder.
The court acknowledges that the testimony ol
Dinardo was probably decisive in convicting
Murdoch. The trial in this case was held more than
twelve years after the robbery-murder. The events
took place quickly. No eyewitness claimed to be
acquainted with the perpetrators before the date o!
the robbery-murder. At trial, there were two weak
identifications of the petitioner by eyewitnesses and
one somewhat stronger identification. Without
Dinardo's testimony, it 1s questionable whether the
jury would have convicted Murdoch. The prosecutor
obviously believed that. Otherwise, she would not
have offered to reduce Didonato's offense t
manslaughter in exchange for his testimony.
Dinardo's testimony was crucial. Evidence that
Dinardo had earher told a story different from that
which he told the jury might conceivably have
caused the jury to doubt Dinardo's trial testimony
The difficulty in this case is that Dinardo's prior
inconsistent statement was inextricably linked with
other statements which either conflicted with other
evidence or were demonstrably false. Given those
problems, this court should not find that admission
of the December 1, 1994 letter would have changed
the jury's ultimate determination of Murdoch's guilt
If the court finds that the failure to admit Dinardo's
letter at Murdoch's trial constituted a violation of
the Confrontation Clause, the court should find that
the error was harmless
The failure of the Califorma court
whether Murdoch's nght of confrontation trump
Dinardo's claim of privilege was contrary to the
f this case as found by the Ninth Circuit. Hows
evidence did not violate the Confrontation Clau
because the contents of the letter did not hay
substantial probative value in the light of the oth
evidence in this case Even if the contents of th
letter are deemed to have significant probative valu
and the failure to admit the letter into eviden
violated the Confrontation Claus the error was
harmless. ‘The court should deny the ri
claims of the petition
RECOMMENDATION
e magistrate judge therefore recommen
the court issue an order: (1) approving and adopt
j
this Third Report and Recommendation: and
directing that judgment be entered d
netition on +h moeorite wu the wie . ]
| ‘ i ij i; . i
App. 96
[FILED APRIL 7, 2005]
THIS CONSTITUTES NOTICE OF ENTRY AS
REQUIRED BY FRCP, RULE 77(d)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA -
WESTERN DIVISION
CHARLES ) Civil No. CV-99-06900-
MURDOCH, ) RSWL (Me)
Petitioner, ORDER ADOPTING
REPORT AND
| RECOMMENDATION
ROY CASTRO, ' OF UNITED STATES
Warden, et al., ' MAGISTRATE JUDGE
Respondents
Pursuant to 28 U.S.C. § 636(b){(1)(C), the court
has reviewed the pleadings and other papers herein,
the Third Report and Recommendation of United
States Magistrate Judge, and the objections thereto,
and accepts and adopts the Magistrate Judge's
findings, conclusions and recommendations. The
court has made a de novo determination of those
portions of the report as to which objection has been
made.
IT IS ORDERED that the Clerk shall serve copies
of this Order and the Judgment by United States
Mail on the petitioner and the Attorney General for
the State of California
Dated: April 7, 2005
RONALD S.W. LEW
United States District Judge
KNTERED
CLERK U.S. DISTRICT COUR
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