Delgadillo v. Woodford

• Decision Date: 03 June 2008
• Docket Number: No. 07-55089.,07-55089.
• Citation: 527 F.3d 919
• Parties: Herculano DELGADILLO, Petitioner-Appellant, v. Jeanne S. WOODFORD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 919

Herculano DELGADILLO, Petitioner-Appellant, v. Jeanne S. WOODFORD, Respondent-Appellee.

No. 07-55089.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2007.

Filed June 3, 2008.

Vivian A. Fu, San Francisco, CA, for the petitioner-appellant.

Meagan J. Beale, Deputy Attorney General, Office of the Attorney General of the State of California, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Southern District of California; Dana M. Sabraw, District Judge, Presiding. D.C. No. CV-03-01501-DMS.

Before: DAVID R. THOMPSON, KIM MCLANE WARDLAW, and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge.

This appeal requires us to consider whether for purposes of our review under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d)(1), a state habeas court's decision to apply Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), retroactively to uphold a defendant's sentence is an unreasonable application of Supreme Court precedent. Although Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 1177, 167 L.Ed.2d 1 (2007), held that Crawford is not retroactively applicable in federal habeas proceedings, Danforth v. Minnesota, ___ U.S. ___, 128 S.Ct. 1029, 1040-41, 169 L.Ed.2d 859 (2008), clarified that the rule of nonretroactivity for federal habeas proceedings is not binding on state habeas courts. In light of Danforth, we hold that the state habeas court's decision to apply Crawford was reasonable. We also hold that we must defer to the state habeas court's application of Crawford to the facts of this case. Therefore, we affirm the district court's denial of Delgadillo's petition for a writ of habeas corpus.

I

On September 22, 2000, Herculano Delgadillo was convicted in California state court of multiple counts of threatening, assaulting, and inflicting corporal injury on his then girlfriend, now wife, Rosa Ramirez.

On May 19, 2000, Ramirez called 911 and reported that she had been beaten by Delgadillo. After meeting Officer Vasquez at the police station, Ramirez told him that she had just been punched and choked by Delgadillo. She also recounted several prior incidents where Delgadillo had threatened and beaten her. The following day, Ramirez went to White Memorial Hospital for treatment. She told a nurse that her boyfriend was responsible for her injuries, and that he had also assaulted her one or two weeks prior. On May 24th, Detective Behrendt of the San Diego Police Department interviewed Ramirez. Ramirez repeated the information she had previously provided to Officer Vasquez about the May 19th incident, and described two other assaults by Delgadillo, including an incident where he slammed a door on her head and another time when Delgadillo had choked her.

Police arrested Delgadillo on May 27, 2000. Several days afterwards, Ramirez visited Delgadillo in jail. She then informed Detective Behrendt that she did not wish to pursue charges. Ramirez and Delgadillo married before his trial.

Delgadillo was charged with two counts of inflicting corporal injury on a cohabitant, four counts of assault with a deadly weapon or force likely to produce great bodily injury, and two counts of making a terrorist threat. See CAL. PENAL CODE §§ 273.5, 245(a)(1), 422.

At the preliminary hearing on June 14, 2000, Ramirez appeared both as a witness for the state and as a witness for the defense. Officer Vasquez, Detective Behrendt, and several of Ramirez's coworkers also testified for the state. Ramirez denied telling the police, her coworkers, or the nurse that Delgadillo abused her. She also testified that she had hit Delgadillo first on the night of May 19th. Delgadillo had an opportunity to cross-examine her and the other witnesses.

Ramirez did not appear at Delgadillo's trial. The court declared her unavailable and allowed the state to read Ramirez's testimony at the preliminary hearing to the jury. Officer Vasquez, Detective Behrendt, and Ramirez's coworkers, including Maha Dahglas, who had not testified at the preliminary hearing, were witnesses for the state. The police officers, the nurse, and Ramirez's coworkers testified regarding Ramirez's prior inconsistent statements, including Ramirez's statements that Delgadillo had assaulted her. Coworkers also testified that they saw Ramirez with various injuries between November 1999 and May 2000, including bruising around her leg, throat, and eyes. Delgadillo's trial counsel did not object to the admissibility of Ramirez's hearsay statements at trial.

On September 22, 2000, Delgadillo was convicted on all counts except for one of the terrorist threat counts.

Delgadillo did not raise any Confrontation Clause claims on direct appeal. The state appellate court denied his appeal in a reasoned opinion on June 28, 2002, and the state supreme court summarily denied his appeal on September 11, 2002.

Delgadillo filed his federal habeas petition on July 28, 2003, claiming that Ramirez's preliminary hearing testimony was admitted at trial in violation of state evidentiary rules, and that there was insufficient evidence to support the jury verdicts. While the federal petition was pending, Delgadillo filed a petition for writ of habeas corpus in the state superior court on September 3, 2003, alleging that trial counsel was ineffective in failing to object to the admissibility of Ramirez's prior inconsistent statements. The superior court denied the petition, as did the California appellate court. With respect to Delgadillo's ineffective assistance claim, the California appellate court noted that it "ha[d] already determined that [Ramirez's] prior inconsistent statements were properly admitted and an objection would have been fruitless." Moreover, the court held there was no prejudice. The California Supreme Court summarily denied Delgadillo's appeal of this decision.

After the Supreme Court decided Crawford on March 8, 2004, a federal magistrate judge considering Delgadillo's pending federal habeas petition determined that Delgadillo had raised Sixth Amendment claims, namely, that the introduction of Ramirez's out-of-court statements at trial violated Delgadillo's Confrontation Clause rights. Because the state court had not previously addressed this issue, it was unexhausted. The magistrate judge stayed Delgadillo's habeas petition and held it in abeyance pending Delgadillo's exhaustion of his Confrontation Clause claims in state court. Delgadillo then filed a second state petition for writ of habeas corpus in the state appellate court, raising his Confrontation Clause claims.

On March 21, 2005, the California Court of Appeal rejected Delgadillo's Confrontation Clause claims, ruling that Delgadillo had not demonstrated that his Sixth Amendment rights were violated under Crawford. The California Supreme Court denied Delgadillo's petition without opinion.

Having exhausted his state remedies, Delgadillo returned to the federal district court, which denied Delgadillo's habeas petition on December 15, 2006. Pursuant to 28 U.S.C. § 2253(c), the district court certified five claims for appeal. Delgadillo also raises 11 uncertified issues.

II

On appeal, Delgadillo raises the same claim he raised to the state habeas court, that his Confrontation Clause rights were violated by the admission at trial of Ramirez's out-of-court statements to Detective Behrendt and Ramirez's co-workers. Delgadillo also contends that, absent these inadmissible statements, there was insufficient evidence to support one of his convictions for assaulting Ramirez. In addition, Delgadillo claims his Sixth Amendment rights to effective assistance of counsel were violated by trial counsel's failure to object to the admission of hearsay testimony from Detective Behrendt and Ramirez's co-workers.

A

We first address Delgadillo's Confrontation Clause claims. Although the state habeas court applied Crawford to his claims, Delgadillo contends that we should apply Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was the applicable Supreme Court precedent at the time Delgadillo's conviction became final. Ohio v. Roberts held that if a hearsay declarant is not present for cross-examination at trial, there must normally be a showing that the declarant is unavailable, and even then the hearsay statement is admissible "only if it bears adequate `indicia of reliability.' " 448 U.S. at 66, 100 S.Ct. 2531. The Supreme Court overruled Ohio v. Roberts in Crawford, after Delgadillo's conviction became final. Crawford distinguished testimonial from nontestimonial statements, "and held that `[t]estimonial statements of witnesses absent from trial' are admissible `only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].'" Whorton, 127 S.Ct. at 1179(alterations in original) (quoting Crawford, 541 U.S. at 59, 124 S.Ct. 1354). Non-testimonial statements do not raise Confrontation Clause concerns. Whorton, 127 S.Ct. at 1183 (explaining Crawford).

After Crawford was decided, the Supreme Court determined in Whorton that Crawford constituted a new constitutional rule of criminal procedure that was not retroactively applicable on federal habeas review. Whorton, 127 S.Ct. at 1184. The Court based this conclusion on the framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny. In Teague, the Supreme Court first enunciated the rule that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310, 109 S.Ct. 1060.

Delgadillo argues that we must consider his claims under Ohio v. Roberts, because Crawford does not apply retroactively on federal habeas review. Accordingly, Delgadillo...