                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 26 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BRADLEY SCHWARTZ,                                No. 10-16954

              Petitioner - Appellant,            D.C. No. 4:09-cv-00200-DCB

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN; TERRY
GODDARD,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                      Argued and Submitted October 13, 2011
                            San Francisco, California

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Bradley Schwartz, an Arizona state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus. Schwartz contends that: (1) the

introduction of hearsay testimony at trial violated the Confrontation Clause; (2) the

prosecution engaged in multiple acts of misconduct that deprived him of his right


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to a fair trial; and (3) the trial court, in precluding him from presenting certain

impeachment witnesses, violated his right to due process.

                                           1.

      Because the Arizona Court of Appeals denied Schwartz’s Confrontation

Clause claim on the merits, the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) precludes federal habeas relief unless this decision was (1)

“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).

      The state court’s decision was not contrary to, or an unreasonable

application of, federal law. First, the statements the admission of which Schwartz

challenges were not hearsay: they were not introduced to prove the truth of the

matter asserted by an out-of-court declarant, but instead to show that the person

who made one statement was likely the same person who made the other. The

Confrontation Clause “does not bar the use of . . . statements for purposes other

than establishing the truth of the matter asserted.” Crawford v. Washington, 541

U.S. 36, 59 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).

Second, the Clause bars the admission at trial only of “testimonial statements of a

witness who did not appear at trial.” Id. at 53-54 (emphasis added); Davis v.


                                           2
Washington, 547 U.S. 813, 821 (2006). Although the Supreme Court has not yet

defined precisely what constitutes a “testimonial” statement, it has identified as the

“core class” of such statements “a formal statement [made] to government

officers.” Crawford, 541 U.S. at 51; see also Davis, 547 U.S. at 822. The off-hand

remarks regarding pizza made by Schwartz’s coconspirator to a doctor about to

enter a seminar and a woman working in a convenience store do not remotely

approach the “core class” of statements that the Supreme Court has identified as

testimonial. The state court’s conclusion that introduction of these statements did

not violate the Confrontation Clause was therefore not unreasonable.

                                          2.

      The state court’s rejection of Schwartz’s prosecutorial misconduct claim was

likewise not an unreasonable application of federal law. Unconstitutional

prosecutorial misconduct occurs where the prosecutor engages in actions that “so

infect the trial with unfairness as to make the resulting conviction a denial of due

process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Schwartz

identifies seven separate instances in which, he claims, the prosecutor improperly

brought before the jury evidence that was either false or unduly prejudicial. Three

of these instances did not cause Schwartz any prejudice whatsoever: either the

testimony elicited by the prosecutor was properly before the jury, subsequent


                                          3
testimony revealed the falsity of the prior testimony, or the prosecution later

introduced the same facts through other, permissible channels. In the other four

instances, any harm to Schwartz, either individually or cumulatively, was minimal:

either the inferences the jury could have drawn from the prejudicial testimony

could also have been drawn from other admissible evidence, or the court struck the

improper evidence from the record and admonished the jury to disregard it. See

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (“We normally presume that a jury

will follow an instruction to disregard inadmissible evidence inadvertently

presented to it, unless there is an overwhelming probability that the jury will be

unable to follow the court's instructions.”) (citations and internal quotation marks

omitted). The state court’s conclusion that these purported acts of prosecutorial

misconduct did not “so infect the trial with unfairness” as to deny Schwartz due

process was therefore not unreasonable. See Towery v. Schiro, 641 F.3d 300, 306

(9th Cir. 2010).

                                         3.

      Because the Arizona Court of Appeals did not address Schwartz’s claim that

the trial court’s decision precluding him from introducing the testimony of certain

impeachment witnesses violated Chambers v. Mississippi, 410 U.S. 284 (1973), we

review this claim without applying § 2254(d)(1)’s deferential standard. See


                                          4
Williams v. Cavazos, 646 F.3d 626, 639 (9th Cir. 2011). The trial court determined

that Arizona Rule of Evidence 608(b) – which precludes the introduction of

evidence to contradict aspects of a witness’s testimony collateral to the central

issues at trial – barred Schwartz from introducing witnesses who would impeach

prosecution witness Lourdes Lopez’s testimony regarding why she had left her

former job and when she had reported Schwartz’s threats to one of her colleagues.

Neither fact was directly relevant to whether Schwartz had committed the crimes

with which he was charged. The trial court’s application of the state collateral

evidence rule to exclude this testimony therefore did not “infring[e] upon a

weighty interest of the accused” and was not “arbitrary or disproportionate to the

purposes [the rule was] designed to serve.” Holmes v. South Carolina, 547 U.S.

319, 324 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)).

Schwartz thus was not deprived of due process.

      AFFIRMED.




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