United States v. 2014-12-01 | 12-16528 | MARC BRYANT V. MIKE MCDONALD | nonprecedential | memorandum…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC ANTHONY BRYANT, ) No. 12-16528
)
Petitioner - Appellant, ) D.C. No. 4:11-cv-00164-CW
)
v. ) MEMORANDUM*
)
MIKE D. MCDONALD, )
)
Respondent - Appellee. )
)
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Submitted November 18, 2014**
San Francisco, California
Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL,*** Senior
District Judge.
Marc Anthony Bryant appeals the district court’s denial of his petition for
FILED
DEC 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.

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habeas corpus. 28 U.S.C. § 2254. We affirm.
Bryant, an African-American, asserts that the district court erred when it
denied habeas corpus relief on his claim that his confrontation1 and due process2
rights under the United States Constitution were violated when the California state
courts did not permit him to submit evidence that a witness had used a vile racial
epithet when interviewed by the police. We disagree.
On this record, considering clearly established Supreme Court law,3 we
cannot say that no fairminded jurist4 could decide that the United States
Constitution was not violated by the exclusion of evidence5 of a single-use of a
racial epithet by an outraged homeowner whose son had been beaten and robbed in
her home while she was away. Although a criminal defendant does have a right to
1See U.S. Const. amend. VI.
2See U.S. Const. amend. XIV, § 1. We note that Bryant did not actually
exhaust his due process claim in the state court proceedings. However, the district
court could and did consider that claim. See 28 U.S.C. § 2254(b)(2); Gatlin v.
Madding, 189 F.3d 882, 889 (9th Cir. 1999). So shall we.
3See 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, __, 131 S.
Ct. 770, 785, 178 L. Ed. 2d 624 (2011).
4See Harrington, 562 U.S. at __, 131 S. Ct. at 786; Crosby v. Schwartz, 678
F.3d 784, 788 (9th Cir. 2012).
5Exclusion was on the basis that the evidence had minimal probative value
and was unduly prejudicial. See Cal. Evid. Code § 352; see also Fed. R. Evid. 403.
2

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engage in cross-examination to show that a witness is biased,6 that is subject to trial
judges’ “wide latitude . . . to impose reasonable limits on such cross-examination
based on concerns about . . . prejudice.”7 Here, the exclusion of evidence of a
single use of the racial epithet was not “‘arbitrary or disproportionate.’” Michigan
v. Lucas, 500 U.S. 145, 151, 111 S. Ct. 1743, 1747, 114 L. Ed. 2d 205 (1991); see
also Ortiz v. Yates, 704 F.3d 1026, 1035 (9th Cir. 2012). Bryant was not
precluded from exploring any other indications of bias, racial or otherwise. Taking
the witness’ testimony as a whole, the state courts could find it unlikely that her
credibility or reliability would reasonably have been questioned by a juror on the
basis of that one use of the epithet. Moreover, they could reasonably determine
that use of the epithet in a moment of anger was of minimal relevance to her
identification of Bryant as a person who had been at her house at an earlier time.8
Yet the epithet is so rightly frowned upon by our society that the state courts could
reasonably determine that evidence of its use would be so highly “‘offensive and
6Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L.
Ed. 2d 674 (1986).
7Id. at 679, 106 S. Ct. at 1435.
8See United States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012); cf.
Olden v. Kentucky, 488 U.S. 227, 230–31, 233, 109 S. Ct. 480, 482, 484, 102 L.
Ed. 2d 513 (1988) (per curiam) (victim had substantial reason to be untruthful).
3

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inflammatory’”9 that it would cause undue prejudice to the state’s case. Finally, on
this record, any error was harmless. See Brecht v. Abrahamson, 507 U.S. 619,
623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993). Simply put, the testimony
of the witness, who was not even present at the time of the crime, was useful but
not critical to the state’s case. The district court did not err.
Bryant’s due process claim fails for the same reasons, mutatis mutandis. See
Holmes v. South Carolina, 547 U.S. 319, 326, 126 S. Ct. 1727, 1732, 164 L. Ed. 2d
503 (2006); Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Chia v.
Cambra, 360 F.3d 997, 1003–04 (9th Cir. 2004). Here again, the district court did
not err.10
AFFIRMED.
9Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001).
10We decline to consider Bryant’s claim of cumulative error for which no
certificate of appealability issued. See Rhoades v. Henry, 598 F.3d 511, 515 n.6
(9th Cir. 2010). In any event, there was no error to cumulate. See Mancuso v.
Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); cf. United States v. Sager, 227 F.3d
1138, 1149 (9th Cir. 2000).
4

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