Howard Forbes v. L. ELDRIDGE, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD FORBES,
Petitioner-Appellant,
v.
L. ELDRIDGE, Warden,
Respondent-Appellee.
No. 21-16301
D.C. No.
2:16-cv-01884-MCE-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted November 14, 2022
San Francisco, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,**
District Judge.
Howard Forbes appeals the district court’s denial of his petition for a writ of
habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Reviewing “the denial of a Section 2254 habeas corpus petition de novo,” we
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
affirm. Patsalis v. Shinn, 47 F.4th 1092, 1097 (9th Cir. 2022).
The parties agree that the state trial court erred by failing to instruct the jury
against drawing an adverse inference from Forbes’s decision not to testify. See
Carter v. Kentucky, 450 U.S. 288 (1981). Forbes argues the state appellate court’s
decision that the Carter error was harmless “involved an unreasonable application
of[ ] clearly established Federal law.” See 28 U.S.C. § 2254(d)(1).
The state appellate court offered three bases for its harmless error decision.
First, it noted that the trial judge had previously advised the jury panel not to draw
an adverse inference from the defendant’s decision not to testify. This observation
was consistent with federal law. See United States v. Padilla, 639 F.3d 892, 896–
898 (9th Cir. 2011); United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996);
United States v. Payne, 944 F.2d 1458, 1466–67 (9th Cir. 1991). Second, the
appellate court noted that the prosecutor did not directly comment on Forbes’s
decision not to testify. There is no established federal law to the contrary.
Although the prosecutor stated in summation that the defense had presented no
evidence to rebut the state’s case, the Supreme Court has not established that a
prosecutor may not comment on the weight of the evidence in a way that indirectly
refers to the defendant’s silence. Cf. Griffin v. California, 380 U.S. 609, 610–11,
615 (1965) (addressing only direct prosecutorial references to the defendant’s
choice not to testify). And third, the court reasonably concluded that the weight of

-- 2 of 3 --

3
the evidence against Forbes was strong. The victim vividly remembered the night
in question and identified Forbes as her assailant. Although Forbes claimed that
the sexual encounter was consensual, there was evidence he had committed a
sexual battery in the past. And the victim was injured and traumatized after her
encounter with Forbes. See United States v. Soto, 519 F.3d 927, 930–31 (9th Cir.
2008) (noting that because the uncontradicted evidence was “overwhelming,” the
Carter error was harmless). The court therefore did not unreasonably apply federal
law.
AFFIRMED.

-- 3 of 3 --