NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHARLES DAVID GORDON, No. 20-15105
Petitioner-Appellant, D.C. No. 4:12-cv-00769-PJH
v. MEMORANDUM* JOE A. LIZARRAGA, Warden, Mule Creek State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted June 18, 2021 San Francisco, California
Before: M. SMITH and VANDYKE, Circuit Judges, and GORDON,** District Judge. Concurrence by Judge VANDYKE
Defendant Gordon was charged with, and convicted of, five counts in
connection with her physical and sexual violence against two victims, identified as
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation. JD1 and JD2. Ms. Gordon litigated numerous post-conviction claims in California
state court before filing her federal habeas petition containing twenty claims. The
district court denied the petition but granted a certificate of appealability on fifteen
of them. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the
parties are familiar with the facts, we do not repeat them here except where necessary
to add context to our ruling.
1. Gordon’s first claim is that her pretrial statements were introduced in
violation of her right to counsel under Massiah v. United States, 377 U.S. 201 (1964).
In this case, adversarial proceedings began on April 1, 2009 when the State filed
charges against Gordon. Before that date, the Sixth Amendment right to counsel had
not attached, so Massiah does not apply to Gordon’s statements elicited prior to that
date. As for the statements elicited during the interrogation on April 1, 2009, Ms.
Gordon waived her right to counsel when she spoke to Det. Elia after being read her
Miranda rights. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
2. Gordon next claims that the statements in her April 1, 2009 interrogation
were introduced at trial in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
However, Ms. Gordon validly waived her Miranda rights in spite of her alleged
intoxication at the time of the interrogation. The Napa County Superior Court, in
state habeas proceedings after an evidentiary hearing, found that Ms. Gordon was
not intoxicated to the extent that her will was overborne. Ms. Gordon has not shown
2 by clear and convincing evidence that these factual findings are incorrect. See
Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989).
3. Third, Gordon contends that her pretrial statements were inadmissible due
to outrageous government conduct. The outrageous government conduct defense
justifies dismissal “only where the government’s conduct is ‘so grossly shocking and
so outrageous as to violate the universal sense of justice.’” United States v. Pedrin,
797 F.3d 792, 795–96 (9th Cir. 2015) (quoting United States v. Stinson, 647 F.3d
1196, 1209 (9th Cir. 2011)). The facts surrounding Ms. Gordon’s interrogation do
not satisfy this “extremely high” standard. See id. at 795 (quoting United States v.
Smith, 924 F.3d 889, 897 (9th Cir. 1992)).
4. Next, Gordon argues that her letters written from jail were introduced at
trial in violation of the Fifth Amendment. This claim fails because government
coercion is a gateway requirement for a Fifth Amendment violation. United States
v. Kelley, 953 F.3d 562, 565 (9th Cir. 1992). Ms. Gordon has not rebutted—by clear
and convincing evidence—the correctness of the state court’s factual determinations
that there was no government coercion and that the letters were written with full
competence and awareness. The introduction of these letters therefore did not
violate the Fifth Amendment.
5. Gordon also argues that the state habeas court contravened or unreasonably
applied clearly established federal law when it held that it was constitutional to admit
3 evidence of Gordon’s uncharged prior acts of sexual and domestic violence. But
“[o]ur precedent squarely forecloses” the argument that admission of propensity
evidence violates a defendant’s clearly established due process rights. Mejia v.
Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). The state court did not contravene or
unreasonably apply clearly established federal law in rejecting Ms. Gordon’s claim.
6. Gordon challenges the state habeas court’s rejection of her ineffective
assistance of trial counsel claims based on trial counsel’s (1) failure to object to
introduction of her pretrial statements; (2) failing to object to exclusion of
impeachment evidence for testifying victims; (3) failing to conduct an adequate
investigation to prepare for trial; (4) failing to litigate certain pretrial motions; and
(5) failing to present the reasonable-but-mistaken consent defense. The stated
objections and pretrial motions would have been futile, so counsel’s performance in
that regard does not satisfy the prejudice requirement for an ineffective assistance of
counsel claim pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is no clearly established federal right to introduce extrinsic evidence for
impeachment purposes. Nevada v. Jackson, 569 U.S. 505, 511 (2013). And the
numerous facts Ms. Gordon alleges trial counsel failed to unearth in investigation
are not sufficient to support an ineffective assistance claim because none
demonstrates Ms. Gordon’s factual innocence or undermines confidence in the
verdicts. Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). Furthermore,
4 Ms. Gordon’s trial counsel thoroughly presented her defense of reasonable-but-
mistaken belief that JD1 and JD2 consented to the sexual contact. The state court’s
determination was not unreasonable.
7. Gordon argues that her sentence constituted cruel and unusual punishment
pursuant to the Eighth Amendment. This claim fails because Gordon supports it
only with mitigation evidence, which would not have impacted the trial court’s
stated reasoning for the sentence it imposed. Gordon’s ineffective assistance of
counsel claims based on the alleged violation of the Eighth Amendment also fail
accordingly.
8. Next, Gordon asserts that the state habeas court contravened or
unreasonably applied clearly established federal law when it held that appellate
counsel was not constitutionally ineffective for failing to challenge admitted hearsay
on appeal. This claim fails because the state court held that the testimony was
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHARLES DAVID GORDON, No. 20-15105
Petitioner-Appellant, D.C. No. 4:12-cv-00769-PJH
v. MEMORANDUM* JOE A. LIZARRAGA, Warden, Mule Creek State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted June 18, 2021 San Francisco, California
Before: M. SMITH and VANDYKE, Circuit Judges, and GORDON,** District Judge. Concurrence by Judge VANDYKE
Defendant Gordon was charged with, and convicted of, five counts in
connection with her physical and sexual violence against two victims, identified as
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation. JD1 and JD2. Ms. Gordon litigated numerous post-conviction claims in California
state court before filing her federal habeas petition containing twenty claims. The
district court denied the petition but granted a certificate of appealability on fifteen
of them. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the
parties are familiar with the facts, we do not repeat them here except where necessary
to add context to our ruling.
1. Gordon’s first claim is that her pretrial statements were introduced in
violation of her right to counsel under Massiah v. United States, 377 U.S. 201 (1964).
In this case, adversarial proceedings began on April 1, 2009 when the State filed
charges against Gordon. Before that date, the Sixth Amendment right to counsel had
not attached, so Massiah does not apply to Gordon’s statements elicited prior to that
date. As for the statements elicited during the interrogation on April 1, 2009, Ms.
Gordon waived her right to counsel when she spoke to Det. Elia after being read her
Miranda rights. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
2. Gordon next claims that the statements in her April 1, 2009 interrogation
were introduced at trial in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
However, Ms. Gordon validly waived her Miranda rights in spite of her alleged
intoxication at the time of the interrogation. The Napa County Superior Court, in
state habeas proceedings after an evidentiary hearing, found that Ms. Gordon was
not intoxicated to the extent that her will was overborne. Ms. Gordon has not shown
2 by clear and convincing evidence that these factual findings are incorrect. See
Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989).
3. Third, Gordon contends that her pretrial statements were inadmissible due
to outrageous government conduct. The outrageous government conduct defense
justifies dismissal “only where the government’s conduct is ‘so grossly shocking and
so outrageous as to violate the universal sense of justice.’” United States v. Pedrin,
797 F.3d 792, 795–96 (9th Cir. 2015) (quoting United States v. Stinson, 647 F.3d
1196, 1209 (9th Cir. 2011)). The facts surrounding Ms. Gordon’s interrogation do
not satisfy this “extremely high” standard. See id. at 795 (quoting United States v.
Smith, 924 F.3d 889, 897 (9th Cir. 1992)).
4. Next, Gordon argues that her letters written from jail were introduced at
trial in violation of the Fifth Amendment. This claim fails because government
coercion is a gateway requirement for a Fifth Amendment violation. United States
v. Kelley, 953 F.3d 562, 565 (9th Cir. 1992). Ms. Gordon has not rebutted—by clear
and convincing evidence—the correctness of the state court’s factual determinations
that there was no government coercion and that the letters were written with full
competence and awareness. The introduction of these letters therefore did not
violate the Fifth Amendment.
5. Gordon also argues that the state habeas court contravened or unreasonably
applied clearly established federal law when it held that it was constitutional to admit
3 evidence of Gordon’s uncharged prior acts of sexual and domestic violence. But
“[o]ur precedent squarely forecloses” the argument that admission of propensity
evidence violates a defendant’s clearly established due process rights. Mejia v.
Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). The state court did not contravene or
unreasonably apply clearly established federal law in rejecting Ms. Gordon’s claim.
6. Gordon challenges the state habeas court’s rejection of her ineffective
assistance of trial counsel claims based on trial counsel’s (1) failure to object to
introduction of her pretrial statements; (2) failing to object to exclusion of
impeachment evidence for testifying victims; (3) failing to conduct an adequate
investigation to prepare for trial; (4) failing to litigate certain pretrial motions; and
(5) failing to present the reasonable-but-mistaken consent defense. The stated
objections and pretrial motions would have been futile, so counsel’s performance in
that regard does not satisfy the prejudice requirement for an ineffective assistance of
counsel claim pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is no clearly established federal right to introduce extrinsic evidence for
impeachment purposes. Nevada v. Jackson, 569 U.S. 505, 511 (2013). And the
numerous facts Ms. Gordon alleges trial counsel failed to unearth in investigation
are not sufficient to support an ineffective assistance claim because none
demonstrates Ms. Gordon’s factual innocence or undermines confidence in the
verdicts. Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006). Furthermore,
4 Ms. Gordon’s trial counsel thoroughly presented her defense of reasonable-but-
mistaken belief that JD1 and JD2 consented to the sexual contact. The state court’s
determination was not unreasonable.
7. Gordon argues that her sentence constituted cruel and unusual punishment
pursuant to the Eighth Amendment. This claim fails because Gordon supports it
only with mitigation evidence, which would not have impacted the trial court’s
stated reasoning for the sentence it imposed. Gordon’s ineffective assistance of
counsel claims based on the alleged violation of the Eighth Amendment also fail
accordingly.
8. Next, Gordon asserts that the state habeas court contravened or
unreasonably applied clearly established federal law when it held that appellate
counsel was not constitutionally ineffective for failing to challenge admitted hearsay
on appeal. This claim fails because the state court held that the testimony was
properly admitted under state law. “[F]ederal habeas corpus relief does not lie for
errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation
marks and citation omitted).
9. Gordon argues that the state court contravened or unreasonably applied
clearly established federal law when it held that the State did not violate Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory evidence. The
prosecution failed in its affirmative obligation to turn over a police interview of JD1.
5 However, we decline to vacate Ms. Gordon’s conviction on Brady grounds because
the state court’s determination that the undisclosed evidence was cumulative of other
evidence introduced at trial that impugned JD1’s credibility and did not undermine
confidence in the outcome was not contrary to or an unreasonable application of
clearly established federal law. See Shelton v. Marshall, 796 F.3d 1075, 1089 (9th
Cir. 2015), amended on reh’g, 806 F.3d 1011 (9th Cir. 2015).
10. Finally, Gordon claims that her trial was unconstitutional due to
cumulative error. “Under traditional due process principles, cumulative error
warrants habeas relief only where the errors have so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Parle v. Runnels, 505
F.3d 922, 927 (9th Cir. 2007) (internal quotation marks omitted). Ms. Gordon’s
claims do not present errors that rise to this level.
The judgment of the district court is AFFIRMED.
6 FILED Charles David Gordon v. Joe A. Lizarraga, No. 20-15105 JUN 28 2021 VANDYKE, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I generally agree with the majority’s memorandum disposition. I write
separately only to express my view that the video evidence that Gordon characterizes
under the Brady claim as exculpatory is not. As I see it, no reasonable jury would
deem the video of the interview with JD1, considered in its entirety, as exculpatory
or as impeaching JD1’s testimony. See United States v. Zuno-Arce, 44 F.3d 1420,
1426 (9th Cir. 1995), as amended (Feb. 13, 1995) (“This inference is too weak in
this case to amount to exculpatory evidence.”).