                                                                            FILED
                            NOT FOR PUBLICATION                              APR 25 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT


BRUCE M. MOELLER,                      )      No. 09-16454
                                       )
      Petitioner – Appellant,          )      D.C. No. 2:01-cv-02351-FCD-JFM
                                       )
      v.                               )      MEMORANDUM *
                                       )
KAMALA D. HARRIS,** Attorney           )
General; SUPERIOR COURT OF             )
SAN JOAQUIN COUNTY,                    )
                                       )
      Respondents – Appellees.         )
                                       )
                                       )

                   Appeal from the United States District Court
                       for the Eastern District of California
               Frank C. Damrell, Jr., Senior District Judge, Presiding

                       Argued and Submitted April 12, 2011
                            San Francisco, California

Before:      FERNANDEZ, RAWLINSON, Circuit Judges, and WELLS,***
             District Judge.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
      **
       Kamala D. Harris is substituted for her predecessor, Bill Lockyer, as
Attorney General. Fed. R. App. P. 43(c)(2).
      ***
        The Honorable Lesley Wells, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
      Bruce Moeller appeals the district court’s denial of his petition for habeas

corpus relief. See 28 U.S.C. § 2254. We affirm.

      It is important to note that, as relevant here, we may not order issuance of a

writ of habeas corpus unless the state courts’ adjudication “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see also Lockyer v. Andrade, 538 U.S. 63, 70–71, 123 S. Ct. 1166,

1172, 155 L. Ed. 2d 144 (2003). The “‘clearly established’ phrase ‘refers to the

holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time

of the relevant state-court decision.’” Id. at 71, 123 S. Ct. at 1172. And to be an

unreasonable application, “[t]he state court’s application of clearly established law

must be objectively unreasonable.” Id. at 75, 123 S. Ct. at 1174.

      (1)      Moeller first contends that his clearly established right to the

assistance of counsel1 was violated when the state trial court conducted an in

camera proceeding as to a major portion of the hearing to suppress evidence on the

basis that a search pursuant to a warrant was improper.2 We disagree. Moeller’s




      1
          U.S. Const. amend. VI.
      2
          U.S. Const. amend. IV.

                                             2
counsel was excluded from the in camera portion of the hearing.3 That approach

was followed for the purpose of implementing the informant’s privilege.

       The Supreme Court has stated that in order to implement the informant’s

privilege during suppression hearings, the defendant can be precluded from cross-

examining the informant and, for that matter, from cross-examining officers

regarding the informant’s identity. McCray v. Illinois, 386 U.S. 300, 313–14, 87

S. Ct. 1056, 1064, 18 L. Ed. 2d 62 (1967); see also United States v. Anderson, 509

F.2d 724, 730 (9th Cir. 1975). Moreover, the Court has indicated that the

informant’s privilege also extends to the contents of his disclosures if those would

disclose his identity. See Roviaro v. United States, 353 U.S. 53, 60, 77 S. Ct. 623,

627, 1 L. Ed. 2d 639 (1957); United States v. Napier, 436 F.3d 1133, 1136 (9th

Cir. 2006). In addition, the Court has noted that a suppression hearing is not like a

trial because the latter seeks truth, while the former seeks to avoid the truth.

McCray, 386 U.S. at 307, 87 S. Ct. at 1060.

      Nevertheless, Moeller insists that an accused is entitled to counsel at the

critical stages of the proceeding against him. See United States v. Cronic, 466 U.S.

648, 659 & n.25, 104 S. Ct. 2039, 2047 & n.25, 80 L. Ed. 2d 657 (1984). And, as


      3
      As the parties agree, in general that was conducted pursuant to procedures
approved by the California Supreme Court. See People v. Hobbs, 7 Cal. 4th 948,
971–75, 873 P.2d 1246, 1259–62, 30 Cal. Rptr. 2d 651, 664–67 (1994).

                                           3
we have said, a pretrial motion to suppress is a critical stage. United States v.

Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004).

      However, Cronic does not require a different conclusion. First, there can be

little doubt that McCray and Roviaro contemplated that counsel, as well as the

defendant, could be precluded from cross-examining the witnesses, where

necessary, and Cronic did not overrule those cases or the principles on which they

rested. Second, counsel was not precluded from assisting Moeller during the

proceedings; counsel was only excluded from the in camera portion of the hearing;

the state courts reasonably deemed that necessary to protect the privilege. Third,

counsel could (and did) submit questions to the trial court for its use in the in

camera hearing, and counsel was given the portion of the warrant that did not need

to be redacted to protect the informant. Finally, counsel did in fact vigorously

argue Moeller’s position to the trial court.

      In short, we do not doubt that there is tension between the concept of the

right to counsel and the concept that there should be an informant’s privilege that

limits the reach of that right. Nonetheless, what is clear is that we cannot say that

the procedure followed by the California courts violated clearly established

Supreme Court law.

      (2)    Moeller then contends that the state courts violated his clearly



                                           4
established right to due process4 when they used the in camera procedure. Again,

we must disagree. What the Supreme Court has said is that an informant’s identity

need not be revealed at a suppression hearing, and that a failure to reveal it does

not violate due process. See McCray, 386 U.S. at 312–13, 87 S. Ct. at 1063. And,

again, the privilege also covers the contents of the informant’s disclosures, if those

would reveal the informant’s identity. See Roviaro, 353 U.S. at 60, 77 S. Ct. at

627; Napier, 436 F.3d at 1136; Anderson, 509 F.2d at 730. Although the privilege

must sometimes give way at trial, a defendant’s interests are “of a lesser

magnitude” at a suppression hearing. United States v. Raddatz, 447 U.S. 667, 679,

100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424 (1980).

      In fine, when all is said and done, the state courts are entitled to a great deal

of leeway in this area,5 and we cannot say that the California courts violated clearly

established Supreme Court law.

      AFFIRMED.




      4
          U.S. Const. amend. XIV, § 1.
      5
       See Renico v. Lett, ___ U.S. ___, ___, 130 S. Ct. 1855, 1864, 176 L. Ed. 2d
678 (2010) (stating that the more general the standard, the more leeway afforded);
Roviaro, 353 U.S. at 62–63, 77 S. Ct. at 628–29 (stating there is no fixed rule on
disclosure; balancing required).

                                           5
