                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 06 2014

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



                            FOR THE NINTH CIRCUIT


ABACUC GUEVARA,                                   No. 10-55835

              Petitioner - Appellant,             D.C. No. 5:09-cv-01144-R-DTB

  v.
                                                  MEMORANDUM*
CONNIE GIPSON, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted August 27, 2013
                               Pasadena, California

Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.**

       Abacuc Guevara appeals the district court’s denial of his petition for a writ

of habeas corpus. The California Court of Appeal upheld his convictions for

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for the Eastern District of New York, sitting by designation.

                                           1
murder and being a felon in possession of a gun after ruling that the erroneous

admission of preliminary hearing testimony was harmless.

      In determining whether the state court’s error was harmless on collateral

review, we examine “the record as a whole” and ask whether the violation had a

“substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); accord Merolillo v. Yates, 663

F.3d 444, 455 (9th Cir. 2011). Relevant considerations include “the importance of

the testimony, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony, the extent of cross-

examination permitted, and the overall strength of the prosecution’s case.”

Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011) (quoting Whelchel v.

Washington, 232 F.3d 1197, 1206 (9th Cir. 2000)). We have ruled that the

erroneous admission of testimony is not rendered harmless by corroborative

evidence if “(1) there was a reason for the jury to doubt the only eyewitness

testimony; (2) the third party testimony was not exceptionally strong; and (3) the

physical evidence connecting the accused to the crime was limited and explained

by [the defendant's theory of the case].” Id. (alteration in original) (quoting

Whelchel, 232 F.3d at 1208).




                                           2
      Aside from the preliminary hearing testimony, the jury heard of three eye-

witness identifications of Guevara and his motive to commit the crimes. The jury

had reason to doubt each piece of evidence presented, including the preliminary

hearing testimony, but the cumulative effect of multiple identifications

distinguishes this case from Ocampo. In light of the testimony from other

witnesses and Guevara’s opportunity for cross-examination at the preliminary

hearing, we conclude, consistent with Brecht, that the erroneous admission of the

preliminary hearing testimony did not have a substantial and injurious effect on the

jury’s verdict.

      AFFIRMED




                                          3
                                                                                    FILED
                                                                                    FEB 06 2014
Guevara v. Gipson., No. 10-55835
                                                                               MOLLY C. DWYER, CLERK
                                                                                 U.S. COURT OF APPEALS
COGAN, District Judge, concurring.


      In light of Judge Christen’s dissent, I write briefly to further explain my

concurrence in the majority decision.

      Although I believe that the case is close, the Supreme Court made it clear in

Fry v. Pillar, 551 U.S. 112 (2007), that the “substantial and injurious effect or

influence” test for harmless error in Brecht v. Abrahamson, 507 U.S. 619 (1993),

subsumes the standard under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254(d). Because Fry held that Brecht is more

deferential to state court decisions than AEDPA, it follows that if a state court’s

decision would be upheld under AEDPA, then it must be upheld under Brecht.

      From that perspective, the resolution of close cases like this becomes more

apparent. The Supreme Court has clarified that the AEDPA standard of review is

extremely narrow, and is intended only as “a ‘guard against extreme malfunctions

in the state criminal justice systems,’ not a substitute for ordinary error correction

through appeal[.]” Ryan v. Gonzales, __ U.S. __ , 133 S. Ct. 696, 708 (2013)

(quoting Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786). “[E]ven a strong

case for relief does not mean that the state court’s contrary conclusion was

unreasonable.” Harrington, 131 S. Ct. at 786. Indeed, in Harrington, the Supreme

Court went so far as to hold that a habeas court may only “issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme Court’s] precedents.” Id. This standard of

“no possibility” of disagreement among “fairminded jurists” as to the existence of

legal error is arguably the narrowest standard of judicial review in the law.

      For the reasons stated in the majority opinion, the state court’s conclusion

that the improper admission of this evidence was harmless beyond a reasonable

doubt does not warrant relief under the Fry/Brecht/AEDPA standard. Fairminded

jurists could readily disagree as to the state court’s conclusion, which precludes

relief. Indeed, but for the dissent, all six state and federal judges who have

considered the issue have expressed the view that relief is not warranted.

Moreover, the state court issued a lengthy, reasoned decision, in which it set aside

two of the counts of conviction based on the error that we are considering, but

determined to uphold the other counts that remain before us.

      This is not a case where there was an absence of evidence to support the

conviction. The properly-admitted evidence had vulnerabilities, but they were

vulnerabilities that could be placed before a jury, and which the state court

considered in determining that the error was harmless. I believe that the standard

of review adopted by the dissent is effectively one of ordinary error, not for the

kind of “grievous[] wrong”, Brecht, 507 U.S. at 637, that habeas corpus exists to

prevent, and therefore join the majority opinion.
                                                                             FILED
Guevara v. Gipson., No. 10-55835                                              FEB 06 2014

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



CHRISTEN, Circuit Judge, dissenting.

      As my colleagues note, the erroneous admission of evidence is not harmless

if the violation had a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 638 (1993). In my

view, the state court’s determination that the admission of April Romero’s

testimony did not have a substantial and injurious effect on the jury was

unreasonable. Romero testified at a preliminary hearing that Guevara came to her

and essentially confessed, but Romero was unavailable to testify at trial. Likely

because of the weaknesses in the testimony of the remaining witnesses, the

prosecutor stressed Romero’s preliminary hearing testimony in his closing

argument to the jury.

      I respectfully disagree with my colleagues’ conclusion that “the cumulative

effect of multiple identifications distinguishes this case from Ocampo.” Ocampo v.

Vail teaches that corroborative evidence cannot render the wrongful introduction of

other evidence harmless if: “(1) there was a reason for the jury to doubt the only

eyewitness testimony; (2) the third party testimony was not exceptionally strong;

and (3) the physical evidence connecting the accused to the crime was limited and

explained by [the defendant's theory of the case].” 649 F.3d 1098, 1114 (9th Cir.
2011) (quoting Welchel v. Washington, 232 F.3d 1197, 1208 (9th cir. 2000)). In

this case, there was plenty of reason to doubt the remaining eyewitness testimony,

which was not “exceptionally strong.”

      David Poplin — referring to handwritten notes — testified that Desiree

Robles told him she saw Guevara running away from the scene of the shootings.

But at trial, Robles denied seeing this, and denied telling Poplin that she did.

Norma Munoz testified that a 10-year-old child yelled “It was Abacuc!”

immediately after the shootings. But Munoz did not mention hearing this when she

was interviewed by police on the day of the murders. In fact, Munoz did not

mention this until a week before trial. Thomas Handgis, Jr. testified that he saw

Guevara run in front of his car carrying a gun, but he did not see the shooting.

Handgis identified Guevara in the courtroom, but his pretrial identification of

Guevara was problematic: he did not recognize Guevara at the time of the

shootings and Guevara’s photograph was one of two that Handgis picked out from

a photographic lineup.

      Given this record, Romero’s testimony was so much stronger than that of all

the remaining witnesses that the state court was not only wrong, but also

unreasonable, in concluding that her testimony did not substantially influence the

jury’s verdict. AEDPA’s “standard is demanding but not insatiable.” Miller-El v.

Dretke, 545 U.S. 231, 240 (2005). “[W]here, as here, a state court doesn’t act
reasonably, deference comes to an end.” Doody v. Ryan, 649 F.3d 986, 1028 (9th

cir. 2011) (en banc) (Kozinski, C.J., concurring). I therefore respectfully dissent.
