NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHARLES VERDEL FARNSWORTH, No. 22-35805
Petitioner-Appellant, D.C. No. 3:20-cv-05067-BHS
v. MEMORANDUM* JERI BOE, Clallam Bay Superintendent,
Respondent-Appellee.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Submitted May 9, 2024** Seattle, Washington
Before: MURGUIA, Chief Judge, and McKEOWN and OWENS, Circuit Judges.
Charles Farnsworth appeals the district court’s order denying his 28 U.S.C.
§ 2254 habeas corpus petition challenging his conviction for first-degree robbery.
Because the parties are familiar with the facts, we do not recount them here. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we
* 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). affirm.
We review de novo a district court’s denial of a habeas petition. Prescott v.
Santoro, 53 F.4th 470, 477 (9th Cir. 2022). Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), habeas relief may not be granted unless a state
court’s adjudication of a claim: “(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).
I. Ineffective Assistance of Counsel
The Washington state courts did not err in denying Farnsworth’s claims of
ineffective assistance of counsel. To obtain relief on an ineffective assistance of
counsel claim, a petitioner must “show both that his counsel provided deficient
assistance and that there was prejudice as a result.” Harrington v. Richter, 562
U.S. 86, 104 (2011).
As an initial matter, there is no clearly established law that Farnsworth can
bring an ineffective assistance claim against standby counsel when Farnsworth was
proceeding pro se. As the Supreme Court stated in Faretta v. California, “a
defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of ‘effective assistance of
2 counsel.’” 422 U.S. 806, 834 n.46 (1975). Farnsworth argues his counsel was
standby in name only, as counsel argued motions and cross-examined witnesses.
But even assuming a claim could proceed on those grounds, Farnsworth has not
shown that he suffered any prejudice from standby counsel’s representation.
Therefore, the Washington state courts were reasonable in denying Farnsworth’s
claim against his standby counsel for failing to get certain police reports admitted
for impeachment purposes.
Farnsworth’s second ineffective assistance claim for the failure to obtain
allegedly exculpatory surveillance footage—when he was formally represented by
counsel—also fails. The Commissioner of the Washington Supreme Court
(“Commissioner”) reasonably found no error in counsel’s representation of
Farnsworth because Farnsworth provided nothing other than speculation to assert
that exculpatory evidence existed on the surveillance video. Further, the record
shows that Farnsworth’s counsel had explicitly requested an unedited version of
the footage. Even if counsel failed to secure the footage before it was destroyed,
his actions did not fall outside “the ‘wide range’ of reasonable professional
assistance.” Harrington, 562 U.S. at 104 (quoting Strickland v. Washington, 466
U.S. 668, 698 (1984)).
II. Prosecutorial Misconduct
3 The Washington state courts were also reasonable in denying Farnsworth’s
claims of prosecutorial misconduct. As we have stated, “[a] prosecutor’s actions
constitute misconduct if they ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d 1104, 1113
(9th Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). But
under AEDPA’s deferential review standard, Farnsworth fails to show any
deprivation of due process.
Farnsworth argues that the prosecutor violated the Confrontation Clause of
the Sixth Amendment by concealing the terms of the plea agreement offered to the
prosecution’s star witness and Farnsworth’s accomplice, James McFarland. While
recognizing the Washington Supreme Court’s holding on direct appeal that the
exclusion of the plea agreement was erroneous, the Commissioner held that the
exclusion was not prejudicial. This determination was reasonable. As the
Washington Supreme Court discussed, and as the record reflects, McFarland’s
testimony presented his motive for testifying: in exchange for testifying against
Farnsworth, McFarland would avoid his robbery conviction and resulting life
sentence. Although McFarland did not accurately represent the mechanics of the
plea agreement, his testimony reflected the ultimate benefit he would receive for
testifying and so his motivation to lie was before the jury. Cf. United States v.
Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (holding that under the
4 Confrontation Clause, the defendant must be able to cross examine a witness who
received a plea agreement “to show why the witness might testify falsely in order
to gain the benefit or avoid the detriment” outlined in the plea agreement).
Farnsworth also contends that the prosecutor committed misconduct by
vouching for McFarland’s supposedly false testimony that he was motivated to
testify after he reviewed certain police reports that defense counsel could not find
or identify. But it was not unreasonable for the Commissioner to conclude that the
prosecutor’s statement—“[t]hat’s what happened”—after McFarland’s testimony
was not vouching because the statement did not directly address McFarland's
credibility or veracity. Cf. United States v. Weatherspoon, 410 F.3d 1142, 1146–
48 (9th Cir. 2005) (holding that a prosecutor engaged in vouching when directly
telling the jury whether witnesses were being truthful). As the magistrate judge
pointed out, the statement could not be considered vouching “in light of the
prosecutor’s immediate clarification that she was, in fact, asking McFarland how
he knew that happened.”
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHARLES VERDEL FARNSWORTH, No. 22-35805
Petitioner-Appellant, D.C. No. 3:20-cv-05067-BHS
v. MEMORANDUM* JERI BOE, Clallam Bay Superintendent,
Respondent-Appellee.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Submitted May 9, 2024** Seattle, Washington
Before: MURGUIA, Chief Judge, and McKEOWN and OWENS, Circuit Judges.
Charles Farnsworth appeals the district court’s order denying his 28 U.S.C.
§ 2254 habeas corpus petition challenging his conviction for first-degree robbery.
Because the parties are familiar with the facts, we do not recount them here. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we
* 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). affirm.
We review de novo a district court’s denial of a habeas petition. Prescott v.
Santoro, 53 F.4th 470, 477 (9th Cir. 2022). Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), habeas relief may not be granted unless a state
court’s adjudication of a claim: “(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).
I. Ineffective Assistance of Counsel
The Washington state courts did not err in denying Farnsworth’s claims of
ineffective assistance of counsel. To obtain relief on an ineffective assistance of
counsel claim, a petitioner must “show both that his counsel provided deficient
assistance and that there was prejudice as a result.” Harrington v. Richter, 562
U.S. 86, 104 (2011).
As an initial matter, there is no clearly established law that Farnsworth can
bring an ineffective assistance claim against standby counsel when Farnsworth was
proceeding pro se. As the Supreme Court stated in Faretta v. California, “a
defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of ‘effective assistance of
2 counsel.’” 422 U.S. 806, 834 n.46 (1975). Farnsworth argues his counsel was
standby in name only, as counsel argued motions and cross-examined witnesses.
But even assuming a claim could proceed on those grounds, Farnsworth has not
shown that he suffered any prejudice from standby counsel’s representation.
Therefore, the Washington state courts were reasonable in denying Farnsworth’s
claim against his standby counsel for failing to get certain police reports admitted
for impeachment purposes.
Farnsworth’s second ineffective assistance claim for the failure to obtain
allegedly exculpatory surveillance footage—when he was formally represented by
counsel—also fails. The Commissioner of the Washington Supreme Court
(“Commissioner”) reasonably found no error in counsel’s representation of
Farnsworth because Farnsworth provided nothing other than speculation to assert
that exculpatory evidence existed on the surveillance video. Further, the record
shows that Farnsworth’s counsel had explicitly requested an unedited version of
the footage. Even if counsel failed to secure the footage before it was destroyed,
his actions did not fall outside “the ‘wide range’ of reasonable professional
assistance.” Harrington, 562 U.S. at 104 (quoting Strickland v. Washington, 466
U.S. 668, 698 (1984)).
II. Prosecutorial Misconduct
3 The Washington state courts were also reasonable in denying Farnsworth’s
claims of prosecutorial misconduct. As we have stated, “[a] prosecutor’s actions
constitute misconduct if they ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d 1104, 1113
(9th Cir. 2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). But
under AEDPA’s deferential review standard, Farnsworth fails to show any
deprivation of due process.
Farnsworth argues that the prosecutor violated the Confrontation Clause of
the Sixth Amendment by concealing the terms of the plea agreement offered to the
prosecution’s star witness and Farnsworth’s accomplice, James McFarland. While
recognizing the Washington Supreme Court’s holding on direct appeal that the
exclusion of the plea agreement was erroneous, the Commissioner held that the
exclusion was not prejudicial. This determination was reasonable. As the
Washington Supreme Court discussed, and as the record reflects, McFarland’s
testimony presented his motive for testifying: in exchange for testifying against
Farnsworth, McFarland would avoid his robbery conviction and resulting life
sentence. Although McFarland did not accurately represent the mechanics of the
plea agreement, his testimony reflected the ultimate benefit he would receive for
testifying and so his motivation to lie was before the jury. Cf. United States v.
Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (holding that under the
4 Confrontation Clause, the defendant must be able to cross examine a witness who
received a plea agreement “to show why the witness might testify falsely in order
to gain the benefit or avoid the detriment” outlined in the plea agreement).
Farnsworth also contends that the prosecutor committed misconduct by
vouching for McFarland’s supposedly false testimony that he was motivated to
testify after he reviewed certain police reports that defense counsel could not find
or identify. But it was not unreasonable for the Commissioner to conclude that the
prosecutor’s statement—“[t]hat’s what happened”—after McFarland’s testimony
was not vouching because the statement did not directly address McFarland's
credibility or veracity. Cf. United States v. Weatherspoon, 410 F.3d 1142, 1146–
48 (9th Cir. 2005) (holding that a prosecutor engaged in vouching when directly
telling the jury whether witnesses were being truthful). As the magistrate judge
pointed out, the statement could not be considered vouching “in light of the
prosecutor’s immediate clarification that she was, in fact, asking McFarland how
he knew that happened.”
Like his ineffective assistance claim, Farnsworth claims that the prosecutor
erred by not requesting and providing the defense with a full copy of the
surveillance video before it was destroyed. As discussed above, the Commissioner
reasonably found no error because Farnsworth provided nothing other than
speculation to assert that exculpatory evidence existed on the surveillance video.
5 Additionally, Farnsworth cannot pursue a claim under Brady v. Maryland, 373
U.S. 83 (1963), because he fails to show that the prosecution ever possessed the
complete surveillance video or knew of any potentially exculpatory evidence in the
video. See Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (“The
government has no obligation to produce information which it does not possess or
of which it is unaware.”).
Finally, Farnsworth argues that the prosecutor violated his Fifth Amendment
right to remain silent by introducing evidence regarding his refusal to provide a
handwriting exemplar. But as our precedent provides, the production of
handwriting exemplars is neither protected by the Fifth Amendment privilege
against self-incrimination nor a critical stage giving rise to the right to counsel.
See McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir. 2010). Therefore,
Farnsworth’s refusal does not implicate his right to remain silent. Thus, the
Commissioner’s rejection of this claim was not contrary to or an unreasonable
application of clearly established law on the Fifth Amendment.
We reject Farnsworth’s additional prosecutorial misconduct claims because
he provides no evidence or case law to challenge the reasonableness of the state
courts’ decisions. Farnsworth fails to show that any of the prosecutor’s actions
“had substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993).
6 III. Judicial Misconduct
Because the standard of review for a judicial misconduct claim in a habeas
appeal is the same as that for a prosecutorial misconduct claim—and Farnsworth
largely bases his judicial misconduct claims on the same grounds as his
prosecutorial misconduct claims—we conclude that the state courts’ denial of these
claims was also reasonable. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.
1995). Further, we reject Farnsworth’s only other claim that the trial court’s
exclusion of evidence of McFarland’s prior theft conviction raised “a specter of
bias and impropriety.” Farnsworth does not explain how, even if the exclusion was
erroneous, “the state trial judge’s behavior rendered the trial so fundamentally
unfair as to violate due process under the United States Constitution.” Id. at 740
(citations omitted).
IV. Cumulative Error
“[T]he Supreme Court has clearly established that the combined effect of
multiple trial errors may give rise to a due process violation if it renders a trial
fundamentally unfair, even where each error considered individually would not
require reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citations
omitted). However, Farnsworth is unable to demonstrate any errors other than the
trial court’s exclusion of McFarland’s plea agreement. Thus, Farnsworth’s
7 cumulative error claim fails because we are not faced with “the combined effect of
multiple trial errors.” Id.
AFFIRMED.