Robert Jonathen Bailey v. Richard Kirkland

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JONATHEN BAILEY,
Petitioner - Appellant,
v.
RICHARD KIRKLAND,
Respondent - Appellee.
No. 08-16477
D.C. No. 2:06-CV-00467-MCE-
GGH
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted April 6, 2010**
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
Robert Bailey, a California state prisoner, appeals the district court’s denial
of his 28 U.S.C. § 2254 petition alleging he was denied his constitutional right to
testify at his trial in state court. We have jurisdiction pursuant to 28 U.S.C. § 2253,
and we affirm.
FILED
APR 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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DISCUSSION
Bailey claims the state court violated his constitutional right to testify even
though his request came after the close of evidence and after the jury had been
instructed on the elements of the crimes charged. Our review of his claim is
defined by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
See Christian v. Frank, 595 F.3d 1076, 1080 (9th Cir. 2010). Under AEDPA, we
may not grant relief unless the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
We conclude the state court’s decision is neither contrary to nor an
unreasonable application of federal law. Although the right to testify at a criminal
trial is well-established, the right is not without limitation and “may, in appropriate
cases, bow to accommodate other legitimate interests in the criminal trial process.”
Rock v. Arkansas, 483 U.S. 44, 55 (1987) (internal quotation marks omitted). The
state court did not cite to Rock, but it did acknowledge that the Supreme Court has
developed a “body of decisional law regarding a criminal defendant’s right to
testify.” Moreover, the state court is not required to cite to federal authority or
even indicate an awareness of federal law, as long as its decision is not contrary to
established Supreme Court authority. See Early v. Packer, 537 U.S. 3, 8 (2002).

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Bailey complains the state court relied on inapposite state law to determine
whether his request should have been granted. Although the case cited by the state
court, People v. Jones, 30 Cal.4th 1084 (2003), did not involve a defendant’s
request to testify, it does set forth the type of concerns noted in Rock, specifically
whether “other legitimate interests in the criminal trial process” might trump an
individual’s exercise of a constitutional right. See Rock, 483 U.S. at 55 (internal
quotation marks omitted). The state court’s consideration of those concerns is not
an unreasonable application of federal law.
Bailey contends the denial of his request to testify was arbitrary and
disproportionate to the purpose of accommodating other legitimate interests in
violation of the directive set forth in Rock, 483 U.S. at 56. He submits that his
testimony would have posed only minimal inconvenience and delay and would not
have prejudiced the prosecution. We agree, however, with the state court that
Bailey’s testimony might have required new instructions, additional testimony, and
a change in the prosecution’s theory of the case. Bailey complains that it is
unreasonable to speculate as to the import of his testimony, but the record indicates
he did not make an offer of proof and he later refused to waive his client-attorney
privilege that would have permitted his trial attorney to testify.

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The district court did not err by denying Bailey’s § 2254 petition. Contrary
to Bailey’s assertion, United States v. Pino-Noriega, 189 F.3d 1089 (9th Cir.
1999), does not compel a contrary result. There, we held that a defendant “waived
his right to testify by waiting until after the jury had reached a verdict to inform the
court that he wanted to testify.” Pino-Noriega, 189 F.3d at 1096. Bailey can only
point out that his request to testify came earlier in the proceedings and that Pino-
Noriega states that whether it would be too late if the right were asserted “at any
earlier point in time is another question for another day.” Id. We agree with the
state court and the federal district court that Bailey’s request came too late.
Bailey also relies on Gill v. Ayers, 342 F.3d 911 (9th Cir. 2003), where we
held that a defendant has a constitutional right to testify at his sentencing hearing.
We reasoned a state court’s restriction on such testimony created an arbitrary
process that could not be justified in light of the importance of the right to testify in
one’s own behalf. Gill, 342 F.3d at 920. In contrast, Bailey was not barred from
testifying at this trial, and indeed, he expressly waived that right. It is not arbitrary
to require a defendant to exercise his right to testify before the evidence is closed
and the jury is instructed.
AFFIRMED.

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