                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 12 2011

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




                            FOR THE NINTH CIRCUIT



BRETT ANTHONY MARQUIS,                           No. 10-55303

              Petitioner - Appellant,            D.C. No. 3:07-cv-00730-W-POR

  v.
                                                 MEMORANDUM *
VINCENT J. IARIA, Chief Probation
Officer, County of San Diego and
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.



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

                        Argued and Submitted May 4, 2011
                              Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

       Bret Marquis appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition, in which he claims that his Confrontation Clause right was




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           -2-

violated when the trial court admitted the victim’s preliminary hearing testimony at

trial. Because the California Court of Appeal’s adjudication of this claim was

neither contrary to nor an unreasonable application of Supreme Court precedent,

we affirm. See 28 U.S.C. § 2254(d).

      The Sixth Amendment permits the admission of testimonial statements from

an absent witness where the witness is unavailable and the defendant had a prior

opportunity to cross-examine. See Crawford v. Washington, 541 U.S. 36, 59

(2004). At the time of trial in this case, the minor victim, Raymond, was

residing—against his will—in a secure residential treatment facility in Mexico for

teenagers with drug and behavior problems. His mother had forcibly transported

him to the facility as a “last resort,” believing his participation in the program to be

a matter of “life or death.” Raymond’s mother refused to authorize his release

from the facility to allow him to travel to San Diego to testify at trial unless the

trial court or the prosecution could guarantee Raymond’s secure transfer back to

the facility after his trial testimony. In an effort to obtain Raymond’s presence at

trial, the prosecutor served him and his mother with subpoenas issued by the San

Diego County Superior Court and the United States District Court for the Southern

District of California. The prosecutor also researched possible methods of

ensuring Raymond’s secure transportation from the courthouse to the facility, but
                                            -3-

concluded on the advice of county counsel that those methods were possibly illegal

or could otherwise subject the county to liability.

       The California Court of Appeal reasonably concluded that despite the

prosecution’s diligent efforts to obtain Raymond’s presence at trial, Raymond was

unavailable. See Barber v. Page, 390 U.S. 719, 724–25 (1968) (holding that a

witness is not unavailable for Confrontation Clause purposes unless the

prosecution makes a “good-faith effort to obtain his presence at trial.”). Although

the prosecution did not move the trial court to hold Raymond or his mother in

contempt for violating the subpoenas, nothing in the applicable Supreme Court

precedent requires this step before a state court may find a witness to be

unavailable—particularly in light of the likely futility of such a motion in this case.

It is highly unlikely that a parent’s refusal to interfere with her child’s critically

necessary in-patient treatment would be deemed “without good cause” and thus,

contumacious. See Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not

require a futile act.”).

       Because we cannot say that the California Court of Appeal’s decision

upholding the trial court’s unavailability determination was “so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement,” Marquis is not entitled to
                                        -4-

federal habeas relief. See Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

      AFFIRMED.
