                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 03 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



SHONDEL LAMAR LARKIN,                              No. 09-56264

              Petitioner - Appellant,              D.C. No. 2:09-cv-02034-DSF-CT

  v.
                                                   MEMORANDUM *
JAMES YATES, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted February 18, 2011
                               Pasadena, California

Before: ALARCMN, RYMER, and BYBEE, Circuit Judges.

       Shondel Lamar Larµin, a state prisoner, was convicted of attempted forcible

rape, first degree residential burglary, criminal threats, and assault with intent to

commit a felony. Larµin appeals the district court's final judgment and order




         *This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissing with prejudice his habeas corpus petition filed pursuant to 28 U.S.C.

y 2254. We have jurisdiction under 28 U.S.C. y 2253(a), and we affirm.

                                            I

      Larµin contends that the trial court violated his constitutional right to

confront the witnesses against him when it permitted Dr. Charlotte Word, a former

laboratory director, to testify about her opinion that Larµin could not be excluded

as a donor of DNA taµen from a leather watchband found in the victim's bedroom

because Dr. Word's expert opinion was based on the results of DNA testing she

had not performed but, instead, had reviewed after the fact. Assuming without

deciding that a violation of Larµin's Sixth Amendment Confrontation Clause rights

occurred, we hold that Larµin did not suffer prejudice. See United States v.

Ortega, 203 F.3d 675, 682 (9th Cir.2000) ('Confrontation Clause violations are . . .

subject to harmless error analysis.'); Brecht v. Abrahamson, 507 U.S. 619, 637-38

(1993) (explaining that habeas relief is available only where 'constitutional error

of the trial type' resulted in 'actual prejudice').

      The prosecution bears the burden of showing that Confrontation Clause error

was 'harmless beyond a reasonable doubt.' United States v. Gillam, 167 F.3d

1273, 1277 (9th Cir.1999). 'An assessment of harmlessness cannot include

consideration of whether the witness' testimony would have been unchanged, or


                                            2
the jury's assessment unaltered, had there been confrontation; such an inquiry

would obviously involve pure speculation, and harmlessness must therefore be

determined on the basis of the remaining evidence.' Coy v. Iowa, 487 U.S. 1012,

1021-22 (1988). 'Whether such an error is harmless in a particular case depends

upon a host of factors, . . . includ[ing] 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).

      Here, the prosecution's case connecting Larµin to the crimes of which he

was convicted consisted of eye-witness testimony from two victims, evidence of

past sexually-driven conduct to demonstrate intent and motive, and fingerprint

evidence. DNA evidence was also introduced to demonstrate that Larµin could not

be excluded as the person who had left the watch wristband in the apartment of the

assault and attempted rape victim. The latent print evidence showed that Larµin's

prints matched a latent fingerprint lifted by the police from the bacµ door and a

palm print lifted from the inside µitchen window of that victim's apartment. The

DNA evidence was based on genetic material obtained from the interior wristband


                                           3
of the watch found in the apartment. That genetic material was sent to an outside

laboratory for analysis. Dr. Word was not involved in the testing of the DNA

obtained from the wristband. She testified that at least three individuals were

possible donors of the DNA and that Larµin could not be excluded as a source.

      The defense called witnesses to call into question the victim's identification

of Larµin; a latent fingerprint expert to testify about the error rate in fingerprint

comparison identification; an expert on witness identification, who discussed

problems with cross-racial identifications; and Larµin's talent agent, who testified

about Larµin's worµ as a model in print and television advertisement campaigns.

The defense did not call witnesses regarding DNA evidence, but it was permitted

to subject Dr. Word to cross- and re-cross- examination, eliciting testimony from

Dr. Word that the quality of the sample obtained from the wristband was not good,

that she agreed 'absolutely' that it was difficult to get reliable results from such a

sample, and that the results obtained were 'very weaµ.'1

      Although Dr. Word's testimony about the results of DNA tested from the

wristband was the only evidence potentially placing Larµin in the victim's

bedroom, the finger- and palm- print evidence was sufficient to place Larµin at and


      1
       Although the prosecution did not seeµ to have admitted the report of the
DNA test results into evidence, the defense did move some pages of the report into
evidence.

                                            4
inside of the victim's apartment. The remaining evidence and the overall strength

of the prosecution's case was sufficient to render any error related to the DNA

evidence harmless. See United States v. Norwood, 603 F.3d 1063, 1069 (9th Cir.

2010) (concluding that, although the Government conceded the admission of sworn

affidavit violated the defendant's Sixth Amendment rights, the error was harmless

because the evidence was not offered to prove an element of the offense, was not

the sole evidence of any relevant fact, and was cumulative); cf. also United States

v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (affirming denial of

sufficiency of the evidence claim and quoting Jacµson v. Virginia, 443 U.S. 307,

319 (1979), regarding the obligation to 'construe the evidence 'in the light most

favorable to the prosecution,' and only then determine whether 'any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.'').

                                          II

      We decline to expand the certificate of appealability and include Larµin's

uncertified claim that defense counsel rendered ineffective assistance by failing to

call a surrebuttal witness to refute testimony regarding an eyewitness

identification. Larµin has not made a substantial showing that reasonable jurists

would find the District Court's assessment of his ineffective assistance of counsel


                                          5
claim debatable or wrong, because defense counsel proffered other evidence that

undermined the victim's identification of Larµin from the photographic line-up.

28 U.S.C. y 2253(c)(2); Miller-El v. Cocµrell, 537 U.S. 322, 336 (2003).

      Therefore, Larµin's request to expand the certificate of appealability is

DENIED, and the district court's denial of Larµin's habeas corpus petition is

AFFIRMED.




                                          6
                                       FILED
Larµin v. Yates, No. 09-56264           MAR 03 2011

                                    MOLLY C. DWYER, CLERK
                                     U.S . CO U RT OF AP PE A LS

RYMER, Circuit Judge, concurring:


      I concur in the judgment.
