Arredondo v. Ortiz

• Citation: 365 F.3d 778
• Decision Date: 20 April 2004
• Docket Number: No. 01-57166.,01-57166.
• Parties: John Gary ARREDONDO, Petitioner-Appellant, v. George ORTIZ, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

365 F.3d 778

John Gary ARREDONDO, Petitioner-Appellant, v. George ORTIZ, Respondent-Appellee.

No. 01-57166.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2003.

Filed April 20, 2004.

Karyn H. Bucur, Laguna Hills, CA, for the petitioner-appellant.

Jason C. Tran, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding, D.C. No. CV-01-00788-ABC(JTL).

Before KOZINSKI, FERNANDEZ, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

John Gary Arredondo appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition. Arredondo was convicted by a superior court jury in April 1999 of assault by means of force likely to produce great bodily injury and battery with serious bodily injury in violation of California Penal Code §§ 243(d), 245(a)(1). The only issue before us is whether the trial court violated Arredondo's Sixth Amendment right to present a defense by refusing to order a witness to testify after the witness invoked his Fifth Amendment privilege against self-incrimination as to prior convictions and pending charges. As the California Court of Appeal's decision upholding the trial court's ruling did not run afoul of clearly established law as determined by the United States Supreme Court, we affirm.

I

Arredondo and Robert Reed lived in different rooms in an old hotel in downtown Los Angeles. They were friends and occasionally borrowed money from each other, but they got into a fight on the evening of September 17, 1998. According to Reed, Arredondo appeared at Reed's door and demanded that Reed repay $10. Reed, who was intoxicated, told Arredondo he did not have the money and asked him to leave. Arredondo entered the room, continuing to demand the money. When Reed pushed him and told him to leave, Arredondo grabbed and shook Reed, hit him, and threw him to the ground. Reed was too intoxicated to fight back. Arredondo first kicked Reed in the chest and then got on top of him and punched him several times in the face. Arredondo left and Reed lost consciousness for at least 30 minutes. When Reed regained consciousness, he went to sleep. The next day Reed realized he needed medical attention, and was hospitalized for four days. The attack caused cerebral bleeding, a fractured eye socket, a cut inside of his mouth, and scalp injuries.

Arredondo's version was quite different. Arredondo testified that he went to Reed's room to collect a debt, and that for no reason, Reed hit him in the head and then pulled him into his room, causing the two men to fall. As the two stood up, Reed hit Arredondo two more times. At that point, Arredondo, acting in self-defense, hit Reed twice. Reed responded by hitting him in the head with a broom. The two men again fell down. Reed stood up and approached Arredondo with a knife. Arredondo grabbed Reed and hit him four times, hoping to render him unconscious. Reed dropped the knife and fell onto the bed. Arredondo left.

Before trial, Arredondo's counsel indicated that he intended to call Jeffrey Hansen to testify that he and a companion saw Arredondo knock on Reed's door and ask for money. Reed opened the door, and punched Arredondo in the face, causing Arredondo to fall backward and then forward into Reed's room, landing on Reed. The door closed, and Hansen and his companion left.

Hansen, who was facing an alcohol theft charge in an unrelated Three Strikes case in which four prior convictions were alleged, was represented by Deputy Public Defender Peter Swarth. Swarth acknowledged that the prosecutor could properly impeach Hansen on cross-examination with his prior felony convictions, but explained that Hansen's answers could potentially incriminate him in his own trial if Hansen later decided to contest whether he had suffered the priors. Swarth also acknowledged that it would be reasonable to question Hansen about his pending charge because theft is a crime of moral turpitude, yet explained that such questioning could get Hansen "into very [sic] trouble." Finally, Swarth told the court that he believed Hansen was on parole, raising the possibility that Hansen's presence at the hotel or his association with Arredondo could constitute a parole violation. Swarth asked to be present during Hansen's testimony so that he could review with Hansen on a question-by-question basis the decision whether to invoke his Fifth Amendment right. The trial court deferred ruling until the defense case was presented.

When that time came, Arredondo offered to stipulate to Hansen's convictions but the prosecution declined. Swarth represented that he had advised Hansen not to testify. Hansen was sworn, and stated that he wanted to "take the Fifth." The trial court concluded that it could not order Hansen to testify, particularly given Swarth's advice and the substantial liability he was facing. The court then ruled that Hansen should not be called in front of the jury or be allowed to testify on direct as he could not be cross-examined.

Arredondo was convicted and subsequently sentenced to an aggregated term of 45 years to life on account of four prior "serious" felony convictions within the meaning of California's Three Strikes law. The California Court of Appeal reversed two of the prior conviction enhancements, but rejected Arredondo's challenge to the trial court's decision to exclude Hansen's testimony. Arredondo's petition for review was denied by the California Supreme Court.

Arredondo filed a habeas petition in district court claiming that his constitutional right to present a defense was violated when the trial court accepted Hansen's invocation of the Fifth Amendment. The district court denied the petition and Arredondo's application for a certificate of appealability (COA). However, we granted a COA on one issue: "whether the trial court violated appellant's Sixth Amendment right to present a defense by refusing to order a witness to testify after the witness invoked his Fifth Amendment privilege against self-incrimination as to collateral matters."

II

We review a district court's decision to grant or deny a 28 U.S.C. § 2254 habeas petition de novo. See Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002). Because Arredondo's petition was filed after April 24, 1996, the amendments to § 2254 under the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. Id. Under AEDPA, Arredondo is not eligible for federal habeas relief unless the decision of the California Court of Appeal, the last reasoned decision from the state court system, was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or 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); see also Benn, 283 F.3d at 1051.

First, however, we must consider whether a Teague analysis is required. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), teaches that a new rule of constitutional law cannot be applied retroactively on federal collateral review to upset a state conviction or sentence unless the new rule forbids criminal punishment of primary, individual conduct or is a "watershed" rule of criminal procedure. Caspari v. Bohlen, 510 U.S. 383, 396, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). The Supreme Court has made clear that federal courts must decide at the outset whether Teague is implicated if the state argues that the petitioner seeks the benefit of a new rule. Id. at 389, 114 S.Ct. 948. This is true regardless of whether the case is governed by AEDPA. Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We fully recognize our Teague obligation, but do not believe it has been triggered in this case. The state does mention Teague in its brief, but only in passing. The brief simply asserts that reasonable jurists could conclude under the facts of this case that Arredondo's claim lacks merit. This is not an argument, let alone a developed argument. Normally we decline to address an issue that is simply mentioned but not argued, Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir.2001), and we see no reason to depart from that practice in a habeas appeal. If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed, the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an argument should be made why the rule contended for is not within one of Teague's exceptions. No true Teague argument having been made by the state in this case, we decline to conduct a Teague analysis on our own. Caspari, 510 U.S. at 389, 114 S.Ct. 948 (noting that courts may, but do not have to, decline to apply Teague if the state does not argue it) (citing Schiro v. Farley, 510 U.S. 222, 228-29, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)).

III

Arredondo's appeal turns on his view that the Fifth Amendment privilege against self-incrimination applies only to testimony that relates directly to the matters at issue in his criminal trial, not to "collateral" matters. For this he relies on United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir.1991) (drawing line between direct and collateral matters); Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir.1992) (upholding exclusion of defense witness's testimony when the witness refused on cross-examination to respond to questions on non-collateral matters); and United States v. Lord, 711 F.2d 887, 892 (9th Cir.1983) (holding it was error to strike all of the testimony of a witness who refused to answer question...