Taryn Christian v. CLAYTON FRANK, Director, State of Hawaii Department of Public Safety

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARYN CHRISTIAN,
Petitioner - Appellant,
v.
CLAYTON FRANK, Director, State of
Hawaii Department of Public Safety,
Respondent - Appellee,
and
STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY,
Respondent.
No. 08-17438
D.C. No. 1:04-cv-00743-DAE-
LEK
MEMORANDUM *
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted October 15, 2009
Honolulu, Hawaii
Before: BEEZER, GRABER and FISHER, Circuit Judges.
FILED
FEB 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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In a concurrently filed opinion, we reverse the district court’s decision to1
grant habeas relief on behalf of Christian on another ground. See Christian v.
Frank, No. 08-17236, 2010 WL _________ (9th Cir. Feb. ___, 2010).
2
Petitioner-appellee-cross-appellant Taryn Christian seeks a certificate of
appealability for two additional grounds upon which he contends that he is entitled
to habeas relief pursuant to 28 U.S.C. § 2254. Christian argues that he is entitled1
to a writ of habeas corpus because he was allegedly deprived of his constitutional
right to testify on his own behalf at his criminal trial. Christian insists that habeas
relief is also warranted because he allegedly received ineffective assistance of
counsel during his criminal trial.
We have jurisdiction under 28 U.S.C. § 1291, and we deny Christian’s
petition for a certificate of appealability. Christian has not made a “substantial
showing” that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2).
I
The district court adopted the magistrate judge’s findings and
recommendations, which held that the Hawaii trial court’s refusal to allow
Christian to testify at his trial was not contrary to clearly established federal law.
Christian has not demonstrated that a court could reach a different result regarding
his claim that he was unconstitutionally denied his right to testify at his trial.

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3
The right of an accused to testify on his own behalf in a criminal trial is
guaranteed by the Fifth, Sixth and Fourteenth Amendments. Rock v. Arkansas, 483
U.S. 44, 51–53 (1987). A defendant’s right to testify, however, is not absolute and
may, in particular cases, be subservient to other legitimate interests in the criminal
trial process. Id. at 55–56. Restrictions on the right are proper provided that they
are not “arbitrary or disproportionate to the purposes [that the restrictions are]
designed to serve.” Id. at 56.
Here, Christian has not made a “substantial showing” that the Hawaii
Supreme Court’s conclusion was contrary to clearly established federal law.
Before jury selection, the trial judge informed Christian of his right to testify. The
trial judge again emphasized this right after the close of Christian’s defense.
Christian consistently responded that he knew he had a right to testify at his trial
but that he was voluntarily choosing not to exercise that right. Even when
Christian finally interrupted the proceedings and stated that he wanted to
testify—as the prosecution was about to present its closing argument—Christian
expressed that he intended to testify only about an unproduced audio tape with
unknown content that had allegedly surfaced.

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4
II
The district court also adopted the magistrate judge’s findings and
recommendations in regard to Christian’s ineffective assistance of counsel claim.
The district court concluded that the Hawaii Supreme Court’s analysis of this issue
was not an unreasonable application of clearly established federal law. Again,
Christian has failed to show that a court could reach a different result regarding his
ineffective assistance of counsel claim.
Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner claiming
ineffective assistance of counsel must show both cause and prejudice. Id. at 688,
694. To show cause, a petitioner must demonstrate that counsel’s performance at
trial was “outside the wide range of professionally competent assistance.” Id. at
688, 690. To show prejudice, a petitioner must demonstrate that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. In the context of habeas
petitions, the Supreme Court holds that “[o]nly those habeas petitioners who can
prove under Strickland that they have been denied a fair trial by the gross
incompetence of their attorneys will be granted the writ.” Kimmelman v.
Morrison, 477 U.S. 365, 382 (1986).

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The first audio tape contains a recording of a conversation between2
Christian and a friend. In the tape, Christian makes, among other things, two very
quiet statements where he denies murdering the victim.
The second audio tape is a recording of the 911 call that was made from the3
crime scene. The tape allegedly contains a statement by an unknown person
identifying someone else as the murderer.
5
Here, Christian again fails to make a “substantial showing” that the Hawaii
Supreme Court’s conclusion was unreasonable. The conduct of Christian’s
counsel as to both audio tapes at issue was well within the range of professionally
accepted conduct.
The fact that Christian’s counsel did not specifically tell the jury to turn the
volume up on the tape in no way amounts to ineffective assistance of counsel.2
Christian’s counsel read a transcript of the first audio tape to the jury and warned
the jury that certain portions were “hard to pick up.”
Likewise, Christian’s counsel’s decision to not get audio enhancement of the
second audio tape was also reasonable. Counsel’s decision to not have the tape3
enhanced was based on expert testimony that, even after listening to the tape
hundreds of times, the statement was unintelligible.
DENIED.

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