Dion Durrell Hayes v. W. L. MONTGOMERY, Acting Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DION DURRELL HAYES,
Petitioner-Appellant,
v.
W. L. MONTGOMERY, Acting Warden,
Respondent-Appellee.
No. 15-55420
D.C. No.
2:14-cv-04930-DOC-JCG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted February 8, 2017**
Pasadena, California
Before: THOMAS, Chief Judge, and KLEINFELD and NGUYEN, Circuit Judges.
Petitioner Dion Hayes appeals the denial of his petition for writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, by the United States District Court for the
Central District of California. Hayes was convicted in California state court for
FILED
FEB 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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murder and attempted murder. On appeal, Hayes contended that the admission at
trial of testimony from a pretrial hearing violated his rights under the
Confrontation Clause. The California Court of Appeal reversed the attempted
murder convictions but held the admittance of the testimony to be harmless with
respect to Hayes’s murder conviction. After exhausting his state remedies, Hayes
filed a habeas petition with the Central District of California pursuant to 28 U.S.C.
§ 2254. The district court denied his petition. Our court granted a certificate of
appealability to determine whether Hayes was prejudiced by the admission of the
testimony for his murder charge.
Under 28 U.S.C. § 2254(d), a federal court can only reverse a state-court
merits adjudication if the decision: “(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.” 28 U.S.C. § 2254(d). The
federal court must deny the petition if “fairminded jurists could disagree” whether
the state court's decision was reasonable, and “even a strong case for relief does not
mean the state court's contrary conclusion was unreasonable.” Harringon v.
Richter, 562 U.S. 86, 102 (2011). The standard for “whether habeas relief must be
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granted because of constitutional error of the trial type” is harmless error. Brecht
v. Abrahamson, 507 U.S. 619, 638 (1993). An error is harmless if it did not have a
substantial and injurious effect or influence in determining the jury’s verdict. Id. at
637.
To determine if a Confrontation Clause violation is harmless, a court’s inquiry
should include the following five factors: “the importance of the witness’ testimony
in the prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986).
The California Court of Appeal’s decision is not an unreasonable application
of these five factors. The witness who gave the pretrial testimony did not witness
the murder. Instead, another witness offered the crucial testimony of who
murdered Williams. Furthermore, the defense was allowed to cross-examine the
witness in the pretrial hearing. Finally, multiple witnesses stated that Hayes got
into an argument at the party before the shooting and vowed to return. In weighing
these factors, fairminded jurists could find that the California Court of Appeal was
correct in finding the error harmless. See Harrington, 562 U.S. at 102 (holding that
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if “fairminded jurists could disagree” about a state court’s holding then it is not
unreasonable under § 2254(d)). Accordingly, when considering the record as a
whole, the California Court of Appeal cannot be said to have reached a holding
that “involved an unreasonable application of, clearly established federal law”
when it found the error harmless. 28 U.S.C. § 2254(d)(1).
Hayes points to an inconsistency in jury verdicts in attempt to show that the
jury relied on the pretrial testimony. The California Court of Appeal rejected this
argument because a jury acquittal may be due to lenity or another reason as
opposed to a finding of fact. This application of federal law was reasonable. See,
e.g., United States v.Watts, 519 U.S. 148, 155 (1997) (“An acquittal is not a
finding of any fact” (internal quotations omitted)); United States v. Powell, 469
U.S. 57, 66 (1984) (noting a jury inconsistency “may be the result of lenity”).
Because the California Court of Appeal was not unreasonable in concluding
that the admission of the pretrial testimony was harmless error, the district court
did not err in denying Hayes’s petition.
AFFIRMED.
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