Barajas v. Wise

• Decision Date: 23 March 2007
• Docket Number: No. 06-15494.,06-15494.
• Parties: Gloria BARAJAS, Petitioner-Appellee, v. Karen WISE, Parole Agent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

481 F.3d 734

Gloria BARAJAS, Petitioner-Appellee, v. Karen WISE, Parole Agent, Respondent-Appellant.

No. 06-15494.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2006.

Filed March 23, 2007.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, and Marcia A. Fay, Deputy Attorney General, Sacramento, CA, briefed for the appellant. Ms. Fay argued for the appellant.

Jacob M. Weisberg and Lawrence Gibbs, Berkeley, CA, briefed for the appellee. Mr. Weisberg argued for the appellee.

Appeal from the United States District Court for the Eastern District of California; Dennis L. Beck, Magistrate Judge, Presiding. D.C. No. CV-02-06202-DLB.

Before MYRON H. BRIGHT,^* D.W. NELSON, and BERZON, Circuit Judges.

BRIGHT, Circuit Judge.

In August 1998, a Fresno County, California, Superior Court jury convicted Petitioner-Appellee Gloria Barajas ("Barajas") of conspiring to sell, possessing, transporting, and offering to sell heroin based on the testimony of an undercover informant. She was sentenced to three years in state prison. Her direct appeals failed, as did her state habeas petition. In February 2006, a federal district court granted Barajas' habeas petition, holding that the state trial court's refusal to order production of the informant's current and former addresses violated the Confrontation Clause. This appeal by Respondent-Appellant parole agent Karen Wise ("the state") followed.

We conclude that clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. In this case, the testimony of the informant represented the only evidence against Barajas, and the state provided no reasons specific to this case why it should not disclose the information. In accepting the state's arguments, the state court applied a standard that was objectively unreasonable. We affirm the grant of relief.

I.

Barajas met longtime confidential drug informant Maria Arellano in January 1998. Barajas gave Arellano the phone number of her brother-in-law, Juan Hernandez. Hernandez arranged to sell Arellano ten ounces of heroin for $12,000. Arellano notified police, who arranged for a controlled buy of the drugs.

Hernandez was arrested during the drug buy. Officers arrested Barajas the next day without incident. She consented to a search of her house and car, which produced no evidence of involvement in narcotics.

Two weeks later, Arellano received $4,000 for her work as an informant. A police officer testified that she would not have been paid if the arrests had not occurred, but that the amount she would be paid was not determined until after Barajas' arrest.

Before trial, the prosecutor provided a witness list to Barajas' attorneys that did not list Arellano's name or address. The prosecutor wrote that "[t]he confidential informant will be disclosed one week before the trial date . . . and will be available for interview." Disclosure, he added, was being delayed "as disclosure at this time would compromise our ongoing investigations on other cases."

Barajas filed a motion to compel disclosure of Arellano's name earlier or, in the alternative, to dismiss the case. The trial court ordered prosecutors to produce Arellano's name a week before trial, on the schedule originally announced.

After learning Arellano's identity, Barajas filed a motion to compel disclosure of (a) Arellano's current and past addresses for the five years preceding Barajas' arrest; (b) Arellano's arrest and conviction records, if any; (c) evidence of promises or consideration paid to Arellano in connection with Barajas' case; and (d) a copy of the California Department of Justice Bureau of Narcotics Enforcement manual on supervising and/or controlling informants. The district attorney provided (b) and (c), but objected to (a) and (d).

In its response to Barajas' motion for discovery of Arellano's addresses, the state argued:

[D]isclosure of either current or former addresses jeopardizes the informant's ability to continue to work as an informant. In respect to both classifications of addresses, once an investigator begins poking around the address, talking to neighbors, and otherwise communicating either directly or inferentially that the person in question is an informant, or just an unsavory witness, the informant's ability to continue working in an anonymous fashion [is injured]. The risk of threats or harm to the informant is increased dramatically once her address is released.

. . . .

In the case at bar the informant will not be painted as a convicted felon and drug addict but will be described as a person who has worked as an informer for about 20 years, has no misdemeanor or felony convictions and works strictly for money. In this case she was paid $4000 for her services. Her background will be shown. Therefore this informant will be put in the "proper setting."

The prosecution did not distinguish between pre-trial and at-trial disclosure.

After a continuance, the court heard Barajas' motion to compel discovery. Barajas argued Arellano was "an enigma," and that she required Arellano's addresses to put her in her "proper setting." The state replied that Barajas had made no showing of why she needed the addresses. To release the addresses, the state argued, would affect Arellano's future effectiveness and "subject her to risks and danger because there is no question when you are a tattle tale or snitch people don't like you." Moreover, the prosecutor said, Arellano had been interviewed for thirty minutes by Barajas' counsel. She had no criminal record and admitted she earned money as an informant in this and other cases. Disclosure of her address, the state added, "is not going to add anything to that."

The trial court summarily denied the request for disclosure of Arellano's addresses. After the conclusion of her state court proceedings Barajas filed this § 2254 petition in federal district court. The district court rejected her insufficiency of the evidence claim but granted relief because the state courts' refusal to order production of Arellano's current and former addresses violated Barajas' Sixth Amendment right to confront her accuser.

Here, the state challenges the district court's ruling, arguing that clearly established federal law, as determined by the United States Supreme Court, does not require prosecutors to disclose current and former addresses of confidential informants before or at trial.

II.

This court reviews de novo a district court's decision to grant or deny a petition for habeas corpus, Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994), and its factual findings for clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir. 1995).

This petition was filed after the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); consequently, our review is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir.1999).

The standards of review under AEDPA are:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254.

A state court decision is "contrary to" clearly established federal law if it arrives at a conclusion opposite to that of the Supreme Court on a question of law, or decides the case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

To be an "unreasonable application of" clearly established federal law, the state court decision must have identified the correct legal rule but unreasonably applied it to the facts at hand. Id. at 406, 120 S.Ct. 1495.

In its decision below, the district court relied on Smith v. State of Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). In Smith, the Court explained that

[W]hen the credibility of a witness is in issue, the very starting point in `exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

Id. at 131. Smith reinforces the fundamental right of a defendant to confront witnesses against her, a right which states must honor under the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The main mechanism for confrontation is cross-examination:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude...