David Lee Hill v. TIM V. VIRGA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LEE HILL,
Petitioner - Appellant,
v.
TIM V. VIRGA, Warden,
Respondent - Appellee.
No. 13-15799
D.C. No. 4:11-cv-04793-YGR
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted December 9, 2014
San Francisco, California
Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.
David Hill appeals the district court’s denial of his petition for habeas
corpus, brought pursuant to 28 U.S.C. § 2254. He argues that his rights under the
Confrontation Clause were violated by the admission of hearsay relied on by the
state’s expert witness. Hill also argues that his Due Process rights were violated by
FILED
DEC 23 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.

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the admission of the expert’s testimony, the testimony of non-expert police
officers, and evidence of gang crimes and shootings. Under the highly deferential
standard of AEDPA, we cannot conclude that the California Court of Appeal
unreasonably denied Hill’s claims.
The Supreme Court has not clearly established that the admission of out-of-
court statements relied on by an expert violates the Confrontation Clause. See
Williams v. Illinois, 132 S.Ct. 2221, 2228 (2012) (plurality opinion) (concluding
that the statements at issue were not offered for their truth or were not testimonial);
id. at 2247–48 (Breyer, J., concurring) (describing a doctrinal division regarding
whether expert basis testimony is “testimonial”); id. at 2255 (Thomas, J.,
concurring in judgment) (concluding the statements at issue were not testimonial).
Further, the state court was not unreasonable in concluding that Hill’s Due
Process rights were not violated. Under the strict standards of AEDPA, the state
court’s ruling was not an unreasonable application of clearly established Supreme
Court precedent. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)
(explaining the Supreme Court “has not yet made a clear ruling that admission of
irrelevant or overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ [of habeas corpus]”).
AFFIRMED.
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