224 F.3d 972 (9th Cir. 2000), 99-15816, Laboa v. Calderon

Docket Nº:99-15816
Citation:224 F.3d 972
Party Name:ROCKY DEAN LABOA, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee.
Case Date:September 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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224 F.3d 972 (9th Cir. 2000)

ROCKY DEAN LABOA, Petitioner-Appellant,


ARTHUR CALDERON, Warden, Respondent-Appellee.

No. 99-15816

United States Court of Appeals, Ninth Circuit

September 11, 2000

Argued and Submitted February 10, 2000--San Francisco, California

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[Copyrighted Material Omitted]

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COUNSEL: Eric S. Multhaup and Tara M. Mulay, Mill Valley, California, for the appellant.

Ward A. Campbell, Deputy Attorney General, Sacramento, California, for the appellee.

Appeal from the United States District Court for the Eastern District of California D.C. No.CV-94-06253-OWW Oliver W. Wanger, District Judge, Presiding

Before: Procter Hug, Jr., Chief Judge, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.


HUG, Chief Judge:

Petitioner Rocky Dean Laboa appeals the district court's denial on the merits of his petition for a writ of habeas corpus. On March 26, 1982 Laboa was convicted of first degree murder and robbery. The jury found special circumstances to exist, and on May 3, 1982, Laboa was sentenced to prison for life without the possibility of parole. On direct appeal the California Court of Appeals affirmed the conviction, but struck the special circumstance. Laboa's

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sentence was reduced to 25 years to life.

After exhausting his state law remedies, Laboa filed this petition, alleging six constitutional violations. The district court denied the petition on October 20, 1998. Laboa now appeals that decision and argues that, during his trial, he was deprived of due process, of his right to confront witnesses against him, and of his right to effective assistance of counsel. Even if Laboa's trial was infected with constitutional error, however, the error was harmless and did not prejudice Laboa. We therefore affirm.


On November 23, 1980, Laboa and three other individuals, Michael Denney, Danny Carl and Michelle Keener, discussed a sale of guns to the eventual victim, Juan Morones. During this discussion Laboa and the others developed a plan to rob Morones.

That night, Laboa, Denney, Carl and Keener drove to Morones's house in Keener's car, the license plates of which had been removed. While en route, Keener apparently told Carl to tell the others not to rob Morones, but Carl never complied.

When the group arrived at Morones's house, the men waited outside while Keener engaged in an act of prostitution with Morones. Shortly thereafter, while Morones was still nude, Laboa, Denney and Carl entered the house. Denney was carrying a .357 caliber revolver. The men also had a shotgun and a rifle. Denney and Carl ordered Morones to lie down on the bathroom floor. Meanwhile, Laboa and Keener searched for the victim's money in Morones's bedroom. As Laboa and Keener were gathering plastic bags that contained the victim's money, they heard a single shot from the bathroom. Carl yelled that Denney had shot Morones, and the four immediately fled from the house.

As they were driving away from the house, Denney said the shooting was an accident. The four eventually stopped alongside a wheatfield, where they replaced the license plates on the car and buried the handgun. A short time later, at a gas station, they divided the proceeds of their robbery (twenty dollars) among the four of them. Finally, before returning home, they threw the rifle and shotgun into some bushes alongside a road.

Several months later Keener confessed to two police officers and gave them a taped statement. In exchange for immunity, Keener testified at the preliminary hearing and helped the police locate the handgun that Denney had used to shoot Morones.

Laboa, Denney and Carl were arrested. As Laboa and Denney were being transported in a police van, a conversation they had with each other was surreptitiously recorded by the police. The tape contained statements indicating hopelessness in the face of strong evidence against the two, as well as some discussion about how they could beat the charges against them.

On April 15, 1981, during the course of investigation, the police interviewed Denney. During this interview Denney implicated Laboa and the others in the robbery and shooting, but he confessed that he was the one who shot Morones. Denney was tried and convicted of first degree murder, but the California Court of Appeals later found that his confession was involuntary and that his conviction should therefore be reversed. See People v. Denney, 199 Cal.Rptr. 623 (Cal. Ct. App. 1984). According to the California court, the police had improperly continued the interview after Denney requested an attorney, and had improperly implied that the State would be lenient if Denney confessed, but that it would seek the death penalty if he did not confess.

At Laboa's trial, which was before the California Court of Appeals found that Denney's confession was involuntary, the prosecution introduced redacted portions of Denney's confession in order to implicate Denney in the robbery and murder. The portions of the confession were introduced via testimony from a police officer

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who took the confession. The admitted portions made no mention of Laboa, and the only suggestion that anyone other than Keener and Denney was involved in the incident was a statement that three guns were used in the robbery (although the statement did not say who carried the guns). Laboa's attorney objected to the redacted confession on hearsay grounds, but it was admitted as a statement against Denney's interest. Denney himself did not testify at Laboa's trial because he asserted his right against self-incrimination. In addition to Denney's redacted confession, the prosecution introduced the tape-recorded van conversation between Denney and Laboa. Keener also testified at Laboa's trial for the prosecution.

Laboa offered a diminished capacity defense and testified that on the night of the robbery and murder he had been using both heroin and alcohol. He also testified that he thought that he and the others were going to sell guns to the victim, not rob him.

The jury found Laboa guilty of first degree murder and robbery. The judgment of conviction was entered on May 3, 1982.

Laboa filed his federal habeas petition on December 22, 1994. The district court had jurisdiction pursuant to 28 U.S.C.S 2254, and it entered an order denying the petition on October 20, 1998. On November 3, 1998 Laboa filed a motion to Alter and Amend the Memorandum and Order pursuant to Federal Rule of Civil Procedure 59(e). The district court denied that motion on February 19, 1999 and issued a Certificate of Probable Cause for Appeal on that date. Laboa filed a timely Notice of Appeal on March 9, 1999.

The Supreme Court recently decided that the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") regarding the issuance of a Certificate of Appealability ("COA") as a predicate to review in the court of appeals apply to all cases in which the Notice of Appeal was filed after AEDPA's effective date, April 24, 1996. See Slack v. McDaniel, _______ U.S. _______, 120 S.Ct. 1595, 1603 (2000). Laboa's appeal falls within this category of cases. Consistent with Slack, we treat Laboa's Notice of Appeal in this case as an application for a COA. See id. ; Schell v. Witek, 218 F.3d 1017, 1021 n. 4 (9th Cir. 2000) (en banc). We conclude that Laboa has made the requisite "substantial showing of the denial of a constitutional right," 28 U.S.C. S 2253(c)(2), and we therefore grant the COA and exercise jurisdiction over these issues pursuant to 28 U.S.C. S 2253 and Rule 22 of the Federal Rules of Appellate Procedure.


We review de novo a district court's denial of a petition for a writ of habeas corpus. See Allen v. Crabtree , 153 F.3d 1030, 1032 (9th Cir. 1998).

A. Whether the Admission of Denney's Confession Is Reversible Error.

Laboa asserts that the introduction of the redacted portions of Denney's confession violated his rights under the Due Process Clause and the Confrontation Clause because, he claims, Denney's confession was involuntary, hearsay, and untrustworthy. We need not, however, decide whether the admission of Denney's confession at Laboa's trial was constitutional error, because even assuming that it was error, it was harmless.

Erroneous admission of a non-testifying co-defendant's out of court statement is a trial-type error subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 306307 (1991); Brown v. United States, 411 U.S. 223, 231-32 (1973). Laboa briefly argues that the proper harmless error analysis to apply to his case is the "harmless beyond a reasonable doubt" test established by Chapman v. California, 386 U.S. 18, 24 (1967). Laboa acknowledges that in federal habeas proceedings the usual harmless

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error standard is that of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993), but argues that when a state court has not performed a Chapman harmless error analysis, the federal habeas court should apply the Chapman standard. We have recently disposed of this argument. In Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000)), a panel of this Court held that the Brecht standard applies to all S 2254 cases, regardless of the type of harmless error review conducted by the state courts. We therefore reject Laboa's invitation to perform a Chapman analysis.

Under the Brecht harmless error analysis, Laboa's alleged constitutional errors warrant a grant of the habeas petition only if "in light of the record as a whole," the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (internal quotation marks omitted). Thus, Laboa is not entitled to...

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