                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE NINTH CIRCUIT                                OCT 15 2014

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

 JOHN ANTHONY ALMEDA,                               No. 12-17301

                 Petitioner - Appellant,            D.C. No. 2:09-cv-01558-KJM-
                                                    GGH
     v.

 FRED FOULK, Warden,                                MEMORANDUM*

                 Respondent - Appellee.


                      Appeal from the United States District Court
                         for the Eastern District of California
                      Kimberly J. Mueller, District Judge, Presiding

                               Submitted October 7, 2014**
                                San Francisco, California

Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

I.        John Almeda contends that the trial court denied his right to present a

defense by erroneously holding that an alibi witness was unavailable to testify. See

California v. Trombetta, 467 U.S. 479, 485 (1984). The California Court of


           *
             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).
Appeal denied this claim, holding that the trial court did not abuse its discretion by

finding that the witness was unavailable and that other witnesses could have

provided the same testimony. This decision was not contrary to or an unreasonable

application of clearly established Supreme Court precedent, see 28 U.S.C. §

2254(d)(1), nor an unreasonable determination of the facts. See 28 U.S.C. §

2254(d)(2).

II.   Almeda argues that his right to a fair trial was violated when the trial court

refused to grant him a continuance or a mistrial. The decision whether to grant a

continuance “is made in the discretion of the trial judge, the exercise of which will

ordinarily not be reviewed.” Avery v. Alabama, 308 U.S. 444, 446 (1940); see

Renico v. Lett, 559 U.S. 766, 774 (2010) (applying similar standard to decision

whether to grant mistrial). It is clearly established law that a trial judge does not

abuse that discretion unless the decision to deny a continuance was “an

unreasoning and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal

quotation marks omitted). Given this standard and the delays involved here, we

conclude that the California Court of Appeal’s decision denying this claim was not

an unreasonable application of Slappy. See 28 U.S.C. § 2254(d).




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III.   Almeda argues that the trial court denied his right to compulsory process by

withdrawing a bench warrant for the alibi witness’s arrest. Supreme Court

precedent “establish[es], at a minimum, that criminal defendants have the right to

the government’s assistance in compelling the attendance of favorable witnesses at

trial and the right to put before a jury evidence that might influence the

determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). The

California Court of Appeal’s denial of this claim was not an unreasonable

application of clearly established Supreme Court precedent, because another bench

warrant remained outstanding and other witnesses could have been called to testify

to the same facts. See 28 U.S.C. § 2254(d).

IV.    Almeda asserts that the trial court violated his right to confront an adverse

witness when it permitted the state to question the witness, in front of the jury,

when she was not under oath and refused to answer any questions. A prosecutor’s

continued questioning of a witness who refuses to answer his questions may

violate the confrontation clause when used to introduce evidence not otherwise in

the record. See Douglas v. Alabama, 380 U.S. 415, 419 (1965). Although it is not

good practice for a prosecutor to question a witness who is not under oath and

refuses to answer questions, the California Court of Appeal did not unreasonably

apply clearly established Supreme Court precedent when it denied this claim,


                                          -3-
because the trial court properly instructed the jury regarding the state’s questioning

and other admissible evidence provided the same information. See 28 U.S.C. §

2254(d).

      AFFIRMED.




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