                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              SEP 14 2011

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

WILLIE DORSEY CANTRELL,                          No. 09-55386

              Petitioner-Appellant,              D.C. No. 3:07-cv-00354-W-POR

  v.
                                                 MEMORANDUM*
L. S. MCEWEN, Acting Warden; et al.,

              Respondents-Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                           Submitted August 29, 2011**
                              Pasadena, California


Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, 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 Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
      Willie Dorsey Cantrell (“Appellant”) appeals the district court’s denial of his

petition for writ of habeas corpus after his conviction on four counts of committing

a lewd act upon a child under California Penal Code § 288(a). He contends that

the trial court violated his Sixth Amendment right to a jury trial when it imposed

an upper term sentence based on aggravating factors that were not submitted to the

jury. He also argues that the trial court violated his constitutional right to present a

defense when it excluded his proposed expert witness offered for the proposition

that child witness testimony could be subject to suggestion. As Appellant’s habeas

petition was filed after April 24, 1996, the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) applies. Under the AEDPA, a writ of habeas

corpus may not be granted unless the state court decision was either: (1) “contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). We have jurisdiction pursuant to 28

U.S.C. § 2253(a), and we affirm.

      The California Court of Appeal, in the last reasoned state court decision,

erred when it concluded that imposition by the trial court of the upper term

sentence on the principal count on facts not submitted to the jury was nonetheless


                                           2
consistent with Blakely v. Washington, 542 U.S. 296 (2004). See Cunningham v.

California, 549 U.S. 270, 293 (2007) (holding that the middle term in California’s

sentencing statute, and not the upper term, represents the statutory maximum).

Specifically, the trial court based the upper term sentence on two aggravating

factors: that Appellant’s conduct was egregious and that he had previously

molested another child.

      Despite the sentencing error, Appellant is not entitled to habeas relief

because the error was harmless. See Butler v. Curry, 528 F.3d 624, 648 (9th Cir.

2008) (citing Washington v. Recuenco, 548 U.S. 212 (2006)). Under that standard,

a reviewing court must grant relief if “grave doubt” exists as to whether a jury

would have found the facts on which the trial court relied for the sentencing

enhancement beyond a reasonable doubt. Id. (quoting O’Neal v. McAninch, 513

U.S. 432, 436 (1995) (internal quotation marks omitted)). The record established

that the victim was eight years old when Appellant molested her. The record also

established that Appellant was married to the victim’s grandmother, was staying

with the victim and her family at the time of the molestation, and was seen as a

grandfather by the victim. California Rule of Court 4.421 includes as aggravating

factors that the victim was particularly vulnerable and that the perpetrator took




                                          3
advantage of a position of trust or confidence. On this record, there is no “grave

doubt” that the jury would have found both of these factors.

      The California appellate and Supreme courts also upheld the trial court’s

decision to exclude the testimony of Appellant’s expert witness. The witness

would have testified about the theory of suggestibility, which proposes that an

interviewer’s bias can contaminate the memory and responses of the person being

interviewed. United States Supreme Court cases on evidentiary rules “do not

squarely address whether a court’s exercise of discretion to exclude expert

testimony violates a criminal defendant’s constitutional right to present relevant

evidence.” Moses v. Payne, 555 F.3d 742, 758 (2009) (citing

Wright v. Van Patten, 552 U.S. 120, 125 (2008)). Furthermore, the Supreme Court

has not established “a controlling legal standard” to evaluate discretionary

decisions involving such evidence. See id. at 758–59 (internal quotation marks and

citation omitted).

      Instead, a rule allowing a court to exercise discretion in admitting expert

testimony is the type of “well-established rule[] of evidence” described

approvingly by the Supreme Court. See id. at 758 (quoting Holmes v. South

Carolina, 547 U.S. 319, 326 (2006) (internal quotation marks omitted)).

Appellant’s proposed expert witness had no specific information regarding what


                                          4
happened when the victim reported the molestation to her mother. In his proposed

testimony, he only offered that he was sure the mother’s questioning could have

resulted in contamination. The state appellate court’s reasoned decision that an

insufficient foundation had been laid to support an opinion that the mother

contaminated the victim’s responses is not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent. See id. at 759. Thus,

Appellant is not entitled to habeas relief based on the exclusion of the proposed

expert testimony.

      AFFIRMED.




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