                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DION DURRELL HAYES,                              No.   15-55420

              Petitioner-Appellant,              D.C. No.
                                                 2:14-cv-04930-DOC-JCG
 v.

W. L. MONTGOMERY, Acting Warden,                 MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                           Submitted February 8, 2017**
                              Pasadena, California

Before: THOMAS, Chief Judge, and KLEINFELD and NGUYEN, Circuit Judges.

      Petitioner Dion Hayes appeals the denial of his petition for writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, by the United States District Court for the

Central District of California. Hayes was convicted in California state court for


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
murder and attempted murder. On appeal, Hayes contended that the admission at

trial of testimony from a pretrial hearing violated his rights under the

Confrontation Clause. The California Court of Appeal reversed the attempted

murder convictions but held the admittance of the testimony to be harmless with

respect to Hayes’s murder conviction. After exhausting his state remedies, Hayes

filed a habeas petition with the Central District of California pursuant to 28 U.S.C.

§ 2254. The district court denied his petition. Our court granted a certificate of

appealability to determine whether Hayes was prejudiced by the admission of the

testimony for his murder charge.

      Under 28 U.S.C. § 2254(d), a federal court can only reverse a state-court

merits adjudication if the decision: “(1) resulted in a decision that was contrary to,

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

determined by the Supreme Court of the United States; or (2) resulted in a decision

that was 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). The

federal court must deny the petition if “fairminded jurists could disagree” whether

the state court's decision was reasonable, and “even a strong case for relief does not

mean the state court's contrary conclusion was unreasonable.” Harringon v.

Richter, 562 U.S. 86, 102 (2011). The standard for “whether habeas relief must be


                                           2
granted because of constitutional error of the trial type” is harmless error. Brecht

v. Abrahamson, 507 U.S. 619, 638 (1993). An error is harmless if it did not have a

substantial and injurious effect or influence in determining the jury’s verdict. Id. at

637.
       To determine if a Confrontation Clause violation is harmless, a court’s inquiry

should include the following five factors: “the importance of the witness’ testimony

in the prosecution’s case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise permitted, and, of course,

the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986).

       The California Court of Appeal’s decision is not an unreasonable application

of these five factors. The witness who gave the pretrial testimony did not witness

the murder. Instead, another witness offered the crucial testimony of who

murdered Williams. Furthermore, the defense was allowed to cross-examine the

witness in the pretrial hearing. Finally, multiple witnesses stated that Hayes got

into an argument at the party before the shooting and vowed to return. In weighing

these factors, fairminded jurists could find that the California Court of Appeal was

correct in finding the error harmless. See Harrington, 562 U.S. at 102 (holding that



                                           3
if “fairminded jurists could disagree” about a state court’s holding then it is not

unreasonable under § 2254(d)). Accordingly, when considering the record as a

whole, the California Court of Appeal cannot be said to have reached a holding

that “involved an unreasonable application of, clearly established federal law”

when it found the error harmless. 28 U.S.C. § 2254(d)(1).

      Hayes points to an inconsistency in jury verdicts in attempt to show that the

jury relied on the pretrial testimony. The California Court of Appeal rejected this

argument because a jury acquittal may be due to lenity or another reason as

opposed to a finding of fact. This application of federal law was reasonable. See,

e.g., United States v.Watts, 519 U.S. 148, 155 (1997) (“An acquittal is not a

finding of any fact” (internal quotations omitted)); United States v. Powell, 469

U.S. 57, 66 (1984) (noting a jury inconsistency “may be the result of lenity”).

      Because the California Court of Appeal was not unreasonable in concluding

that the admission of the pretrial testimony was harmless error, the district court

did not err in denying Hayes’s petition.



AFFIRMED.




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