                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 23 2013

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



                            FOR THE NINTH CIRCUIT


DANIEL C. CLARKE,                                 No. 11-15232

              Petitioner - Appellant,             D.C. No. 3:09-cv-03232-CRB

  v.
                                                  MEMORANDUM*
JAMES A. YATES,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Charles R. Breyer, Senior District Judge, Presiding

                 Argued and Submitted Monday, December 2, 2013
                            San Francisco, California

Before: HAWKINS, GOULD and PAEZ, Circuit Judges,

       Petitioner Daniel C. Clarke appeals the district court’s denial of his 28

U.S.C. § 2254 habeas petition challenging his conviction of fifteen counts of lewd

acts upon a minor. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

       Clarke argues that the trial court’s limitations on his ability to cross-examine



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
three witnesses violated his Sixth Amendment right of confrontation. Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court

may grant habeas relief only if the limitations on cross-examination involved an

unreasonable application of clearly established federal law, as determined by the

Supreme Court of the United States.1 28 U.S.C. § 2254(d)(1). Although the

Confrontation Clause of the Sixth Amendment guarantees defendants the

opportunity to cross-examine the prosecution’s witnesses, Delaware v. Van

Arsdall, 475 U.S. 673, 678 (1986), defendants are not entitled to “cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish,” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

      We utilize the approach applied in Fowler v. Sacramento County Sheriff’s

Department to determine if the trial court’s limitations on Clarke’s right to cross-

examination were an objectively unreasonable application of federal law. 421 F.3d

1027, 1038 (9th Cir. 2005). First, we must consider “whether the proffered cross-

examination sufficiently bore upon [the witness’s] reliability or credibility such

that a jury might reasonably have questioned it.” Id. Second, if so, we must

consider “whether the trial court’s preclusion of this cross-examination was

      1
        The last reasoned state court decision that addressed the limitations on the
scope of Clarke’s cross-examination was the trial court’s. Thus, that is the
decision we review here. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).

                                          2
unreasonable, arbitrary or disproportionate given its concerns.” Id.

      Clarke first argues that the trial court unconstitutionally limited his right to

cross-examination when it prevented him from asking questions regarding the

victim, M’s, prior sexual conduct and M’s knowledge of her friend K’s

molestation. Clarke argues that these lines of questioning would have allowed him

to establish an alternative source for M’s sexual knowledge and to rebut the

prosecution’s efforts to portray M as sexually naive. Although limitations on

cross-examination into a victim’s sexual interests or sexual history can amount to

an unreasonable application of clearly established federal law, the trial court’s

limitations on Clarke were not objectively unreasonable. See Holley v.

Yarborough, 568 F.3d 1091 (9th Cir. 2009); LaJoie v. Thompson, 217 F.3d 663

(9th Cir. 2000).

      The trial court reasonably found that M was not portrayed in a sexually

naive manner by the prosecution. Under such circumstances, cross-examination of

M regarding her prior sexual experiences or awareness of her friend K’s

molestation was not likely to bear on M’s reliability or credibility such that a jury

might reasonably have questioned her. See Fowler, 421 F.3d at 1038.

      Clarke next argues that he was denied his constitutional right of

confrontation when the trial court refused to permit him to cross-examine M about

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her bipolar disorder and the medication she took to manage her condition.

According to Clarke, this proposed line of questioning would have shown that M

was a difficult child and would have provided an alternative explanation for

Clarke’s motivations to treat M more favorably than her siblings. Although Clarke

was entitled to cross-examine M, the trial court retained wide latitude to impose

reasonable limitations on the scope of cross-examination. See Fensterer, 474 U.S.

at 20. Here, the trial court allowed Clarke to question M regarding her mood

changes and also allowed Clarke to question other witnesses about M’s mental

health. To the extent the trial court prohibited Clarke from eliciting testimony

from M about her diagnosis or the effects of her medication because she was not an

expert on such topics, such limitations were not objectively unreasonable.

      Clarke also challenges the trial court’s limitations on his cross-examination

of M’s mother regarding evidence of M’s possible past abuse by her biological

father. Clarke contends that such questioning would have provided an alternative

explanation for the evidence of M’s past abuse that was presented at trial. Clarke

offers no evidentiary basis for this line of questioning and his suggestion of past

abuse is entirely speculative. Accordingly, Clarke has not shown that this line of

questioning would have had any impact on M’s reliability or credibility, and the

trial court’s decision to preclude it was not objectively unreasonable. See Fowler,

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421 F.3d at 1038.

       Finally, Clarke contends that he should have been permitted to cross-

examine M’s friend K regarding K’s molestation, the facts she shared with M and

why she did not report M’s allegations. As previously discussed, limitations on

cross-examination regarding K’s molestation and the facts she shared with M were

not objectively unreasonable. Moreover, Clarke was allowed to pursue questioning

regarding K’s failure to report M’s allegations during his cross-examination of K.

Accordingly, the trial court’s limitations were not objectively unreasonable.

       Because the trial court’s limitations on Clarke’s cross-examination of M,

M’s mother and K were not an unreasonable application of clearly established

federal law as determined by the United States Supreme Court, we affirm the

district court’s denial of habeas relief.


       AFFIRMED.




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