                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 03 2014

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



                           FOR THE NINTH CIRCUIT


MICHAEL WAYNE HUNTER,                            No. 10-17926

              Petitioner - Appellant,            D.C. No. 5:06-cr-07707-JW

  v.
                                                 MEMORANDUM*
P.D. BRAZELTON, Warden, and
MATTHEW L. CATE, Secretary of the
California Dept. of Corrections and
Rehabilitation,

              Respondents - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                     Argued and Submitted February 10, 2014
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and RICE, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
      Michael Wayne Hunter (“Hunter”) appeals the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a). As the parties are familiar with the facts,

we recite them only as necessary to explain our decision. We affirm.

      We assume, without deciding, that the state trial court erred in finding that

Hunter waived any claim of privilege to the materials in his first attorney’s case

file by disclosing the materials in Hunter Habeas I. We must decide whether this

error had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); accord Pulido v.

Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010), cert. denied, 132 S. Ct. 338 (2011).

We conclude that it did not.

      First, the State confined its use of Dr. Berg’s testimony and the Aniline letter

to impeachment and rebuttal of Hunter’s diminished capacity defense. This limited

use of the contested evidence was permissible. See Harris v. New York, 401 U.S.

222, 225 (1971) (holding that a defendant who chooses to testify in his or her own

defense may not conceal contradictory statements obtained in violation of the Fifth

Amendment from the jury); Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987)

(holding that a defendant who asserts a diminished capacity defense through the

testimony of an examining psychiatrist waives his or her Fifth Amendment


                                          2
privilege against self-incrimination as to any statements made to the psychiatrist);

Kansas v. Cheever, ___ U.S. ___, 134 S. Ct. 596, 601 (2013) (“When a defendant

presents evidence through a psychological expert who has examined him, the

government likewise is permitted to use the only effective means of challenging

that evidence: testimony from an expert who has also examined him.”). Contrary

to Hunter’s assertions, Simmons v. United States, 390 U.S. 377 (1968), does not

foreclose this limited use of the contested evidence. See Kansas v. Ventris, 556

U.S. 586, 594 (2009) (noting that with the exception of coerced statements,

“tainted evidence—evidence whose very introduction does not constitute the

constitutional violation, but whose obtaining was constitutionally invalid—is

admissible for impeachment”). Moreover, even if we assume for the sake of

argument that Hunter’s statements to Dr. Berg and Dr. Aniline were effectively

“coerced,” there was no constitutional violation. See Cheever, 134 S. Ct. at 601

(holding that statements made during a compulsory psychological examination are

admissible to rebut a defendant’s diminished capacity defense).

      Second, Hunter’s diminished capacity defense was severely undermined by

evidence of advance planning and organized thinking. The evidence adduced at

both trials showed, for example, that Hunter made statements to his friends about

wanting to kill his father, that he used a borrowed identification card to purchase


                                          3
the murder weapon, that he wore gloves and a motorcycle helmet to conceal his

identity while committing the crimes, that he destroyed evidence after the murders

to conceal his role in the crimes, and that he executed an elaborate plan to flee to

Mexico in the days after the killings. In view of this evidence, any constitutional

error in the State’s use of the contested evidence to impeach Hunter’s testimony

and to rebut his diminished capacity defense could not have had a substantial and

injurious effect or influence on the jury’s verdict.

      We are not persuaded that the State’s access to the materials in Hunter’s

defense file amounts to structural error. Given that Hunter was represented by

counsel and tried by an impartial jury, we must apply a “strong presumption” that

any constitutional error is subject to harmless error analysis. Rose v. Clark, 478

U.S. 570, 578-79 (1986). Although the state trial court’s ruling “jeopardize[d] the

fairness of [Hunter’s] second trial,” Bittaker v. Woodford, 331 F.3d 715, 723 n.7

(9th Cir. 2003), the record before us does not “defy analysis by ‘harmless-error’

standards,” Arizona v. Fulminante, 499 U.S. 279, 309 (1991). The central issue at

both trials was whether Hunter was capable of forming the intent to commit first-

degree murder. There were very few disputed issues of fact; Hunter testified and

admitted to killing his father and stepmother, and there was substantial forensic

documentation of the manner in which the killings were committed. As a result,


                                           4
Hunter’s attorney had relatively few strategic decisions to make. Thus, any

strategic advantage the State may have gained by having access to the materials in

Hunter’s defense file was negligible. We therefore conclude that the state trial

court’s ruling did not have a substantial and injurious effect or influence on the

jury’s verdict. Brecht, 507 U.S. at 637.

      Finally, we conclude that Hunter suffered no additional prejudice as a result

of the alleged prosecutorial misconduct. In light of our conclusions above, this

claim does not provide an independent basis for granting the petition.

      The decision of the California appellate courts to deny habeas relief was not

objectively unreasonable under AEDPA. The decision of the federal district court

denying federal habeas relief is therefore AFFIRMED.




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