                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2014

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



                           FOR THE NINTH CIRCUIT


GARY CARSON BROWN,                               No. 13-35711

              Petitioner - Appellant,            D.C. No. 2:11-cv-01003-SU

  v.
                                                 MEMORANDUM*
MARK NOOTH,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                           Submitted October 10, 2014**
                                Portland, Oregon

Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.

       Gary Carson Brown appeals the district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition. Brown’s petition challenges his state court

convictions and sentence stemming from the assault and kidnapping of Lindsey


        *
             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).
Ulrich.1 The State concedes the trial court violated Brown’s Sixth Amendment

Confrontation Clause rights by admitting testimonial statements from a non-

testifying witness, Michelle Hartford, Crawford v. Washington, 541 U.S. 36, 53–54

(2004), but argues the error was harmless. Brown argues the error had a

substantial and injurious effect on the jury’s verdict. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253. We affirm the district court’s order.

      We review de novo a district court order denying a petition for writ of

habeas corpus. Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th Cir. 2011). The

Antiterrorism and Effective Death Penalty Act (AEDPA) permits federal courts to

grant a state prisoner 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).

      In determining whether a constitutional 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) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)); accord Merolillo v. Yates, 663 F.3d 444, 455



      1
            The parties are familiar with the facts of this case, so we will not
recount them here.

                                          2
(9th Cir. 2011). We apply the Brecht test “without regard for the state court’s

harmlessness determination.” Ayala v. Wong, 756 F.3d 656, 674 (9th Cir. 2014)

(amended opinion) (quoting Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.

2010)).2 To guide our analysis of the Brecht test, we look to several non-exclusive

factors: “the importance of the testimony, whether the testimony was cumulative,

the presence or absence of evidence corroborating or contradicting the testimony,3

the extent of cross-examination permitted, and the overall strength of the


      2
             Brown argues that “[w]here there is no reasoned opinion by the state
court on the merits, this court should independently review the record, not subject
to the deferential standard that applies under AEPDA.” But the Oregon court is
presumed to have decided that the Crawford error was harmless. Harrington v.
Richter, 131 S. Ct. 770, 784–85 (2011). Because it is more stringent, the Brecht
standard “obviously subsumes” the AEDPA standard for review of a state court
determination of the harmlessness of a constitutional violation. Fry v. Pliler, 551
U.S. 112, 120 (2007) (noting that, because it “makes no sense to require formal
application of both tests,” Brecht alone should be applied).
      3
            The corroborating evidence in this case was corroborating testimony.
We have said:

      While corroborative evidence may, as a general rule, make the
      wrongful introduction of other evidence harmless, this concept has no
      application where: (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].

Whelchel v. Washington, 232 F.3d 1197, 1208 (9th Cir. 2000). The Whelchel
factors are not implicated here.

                                         3
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)).

      Considering these factors and all of the evidence presented to the jury, we

conclude Hartford’s erroneously admitted hearsay statements did not have a

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

Brecht, 507 U.S. at 638 (quoting Kotteakos, 328 U.S. at 776). Hartford’s out-of-

court statements pertaining to Brown were limited to Brown’s actions at the

Causey Street apartment. As the district court aptly noted, “[e]ven without

Hartford’s statements, the record clearly showed Petitioner Brown to be an active

participant in Ulrich’s detention at the Causey apartment.” Brown v. Nooth, No.

02:11-CV-01003, 2013 WL 4026179, at *4 (D. Or. Aug. 5, 2013). Ulrich testified

that Brown told her she was not to leave the apartment or be seen by anyone.

Ulrich also testified that Brown was at the apartment “most of the time” during the

four days and was “only gone for a little bit, maybe a day.” Ulrich recounted that

Brown also handled guns in front of her, and said she was afraid that Brown would

“take me somewhere and just shoot me to get everything out of the way.” Ulrich

was not allowed to leave the Causey apartment except in the company of others,

including Brown. When she did go out, Brown “[j]ust always stayed close to” her.

      In sum, we conclude Hartford’s statements were not essential to the


                                          4
prosecution’s case, they were cumulative, and the prosecution’s overall case was

strong without them. Ocampo, 649 F.3d at 1114. The erroneous admission of

Hartford’s statements was harmless.

      AFFIRMED.




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