                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 17 2015

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



                            FOR THE NINTH CIRCUIT


REED CHRISTOPHER BOYSEN,                         No. 14-35919

              Petitioner - Appellant,            D.C. No. 3:14-cv-05501-RJB

 v.
                                                 MEMORANDUM*
ROBERT HERZOG, Superintendent,
Monroe Correctional Center,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                          Submitted December 10, 2015**
                               Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges and LEFKOW,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
      Reed Boysen appeals the district court’s judgment denying his habeas

corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm.

      This court reviews a district court’s decision to dismiss a petition for writ of

habeas corpus under 28 U.S.C. § 2254 de novo. Gonzalez v. Duncan, 551 F.3d

875, 879 (9th Cir. 2008). The panel “may affirm the district court’s decision on

any ground supported by the record, even if it differs from the district court’s

rationale.” Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). This court

reviews the last reasoned state-court decision, which in this case is the opinion of

the Washington Court of Appeals. Deck v. Jenkins, 768 F.3d 1015, 1021 (9th Cir.

2014).

      The Antiterrorism and Effective Death Penalty Act (AEDPA) allows for

habeas relief only if the state court’s decision “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). Because neither the

district court nor the State has challenged the finding that the state court violated

the Sixth Amendment when it excluded evidence of the precise terms of the

cooperating witness’s plea agreement, the case turns on whether the trial error




                                           2
resulted in “actual prejudice” to Boysen. See Brecht v. Abrahamson, 507 U.S. 619,

637 (1993).

      When the state court has adjudicated the habeas petitioner’s claim on the

merits, as it did here, we turn immediately to the Brecht standard and forego an

analysis under AEDPA. Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). This is

because the more-stringent Brecht standard “obviously subsumes” the AEDPA

standard for review of a state-court determination of the harmlessness of a

constitutional violation. Id. (citing Fry v. Pliler, 551 U.S. 112, 119–20 (2007)).

      Under Brecht, actual prejudice means that the trial error “had substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at

627 (quoting Brecht v. Abrahamson, 944 F.2d 1363, 1375 (7th Cir. 1991) (internal

quotation marks omitted)). In the context of a confrontation clause violation, we

assess (1) the importance of the witness’s testimony to the prosecution’s case; (2)

whether the testimony was cumulative; (3) the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points; (4)

the extent of cross-examination otherwise permitted; and (5) the overall strength of

the prosecution’s case. Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011)

(citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Applying these

factors, we conclude that the limit on Boysen’s cross-examination of Parker was


                                          3
harmless error because it did not have a substantial or injurious effect or influence

in determining the jury’s verdict.

      (1) Even if Parker’s testimony was necessary to finding Boysen liable as a

principal, other witnesses’ testimony and firearm evidence supported the

alternative theory that Boysen was an accomplice, which was sufficient to convict.

The police found two pistols when they detained Parker and Boysen shortly after

the shooting. Parker’s revolver could only account for three of the five or more

shots heard by various witnesses. Thus, by inference, Boysen’s pistol must have

been fired. That the prosecutor did not specifically argue accomplice liability

during closing argument is neither here nor there since Boysen was charged as both

principal and accomplice, the jury was specifically instructed on accomplice

liability, and the jury expressly found that Boysen or his accomplice possessed a

firearm during the assaults.

      (2) Although Parker’s testimony was not cumulative, in that Parker was the

only person to testify that Boysen fired a pistol at the Palmer vehicle, the absence

of cumulative evidence to support the prosecution’s argument that Boysen was the

principal does not defeat the evidence that he was an accomplice.

      (3) Since Boysen had the Beretta pistol on his person when the police

officers detained him after the shooting, it can be inferred that Boysen shot his


                                          4
weapon, making him a principal. In the alternative, Boysen was an accomplice if

he gave Parker his pistol to shoot. Since Boysen’s Beretta pistol was needed to

account for the minimum number of shots heard by the witnesses, both theories are

corroborated. Moreover, Boysen’s reliance on the absence of ejected shells inside

the vehicle fails to account for Parker’s testimony that Boysen fired his Beretta

pistol outside the window of the moving vehicle, which could also account for the

lack of ejected shells inside the vehicle. Lastly, Eldridge’s and Palmer’s testimony

about Boysen’s conduct during the incident is not necessarily contradictory of

Parker’s testimony, as evidence suggests that Palmer and Eldridge simply could

not see what Boysen was doing.

      (4) Boysen was able to inform the jury that Parker received a “substantial”

deal, including the dismissal of charges and firearm enhancements, and that Parker

had repeatedly lied to the police. While disclosure of the precise terms of Parker’s

plea deal may have led the jury to conclude that Parker had received a “great deal”

in exchange for his testimony, Boysen’s counsel was given ample opportunity to

cross-examine Parker on his version of the facts, including his brief testimony that

Boysen was the shooter. Given that extensive cross-examination, we cannot

conclude that exclusion of the precise terms of the plea agreement substantially

influenced the jury’s verdict.


                                          5
      (5) Boysen does not dispute that the State’s evidence was sufficient to prove

him guilty beyond a reasonable doubt under an accomplice theory. Moreover, the

jury deliberated for no more than one day after a three-day trial and did not seek

any clarification on the issues it was charged with resolving. As such, there is no

indication that the prosecution’s evidence was weak.

      We conclude that, under Brecht, the trial court’s restriction on Boysen’s

cross-examination of Parker did not have a substantial and injurious effect or

influence in determining the jury’s verdict. Therefore, the district court did not err

in dismissing Boysen’s petition for a writ of habeas corpus.

      AFFIRMED.




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