Gerardo Ortiz v. Secretary of Corrections

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2023
• Docket: 20-56359
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERARDO ORTIZ, No. 20-56359

Petitioner-Appellant, D.C. No. 2:18-cv-01409-RSWL-MAA v.

SECRETARY OF CORRECTIONS, CDCR, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding

Submitted November 8, 2023** Pasadena, California

Before: WALLACE, W. FLETCHER, and OWENS, Circuit Judges.

California state prisoner Gerardo Ortiz appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for

various forcible sexual crimes against a minor. “We review the district court’s

denial of habeas relief de novo.” Panah v. Chappell, 935 F.3d 657, 663 (9th Cir.

* 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). 2019). Ortiz’s federal habeas petition is subject to the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), under which he is entitled to relief only if

the state court’s adjudication “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,” 28 U.S.C. § 2254(d)(1), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the [s]tate court proceeding,” id. § 2254(d)(2).

Where the last state-court decision on the merits is not accompanied by

reasons, the federal habeas court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a relevant rationale . . . [and]

presume that the unexplained decision adopted the same reasoning.” Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018). Here, the California Supreme Court

summarily denied Ortiz’s petition for review, so the California Court of Appeal’s

decision provides the “relevant rationale.” Id. As the parties are familiar with the

facts, we do not recount them here. We affirm.

1. Ortiz attacks his conviction based on the admission at trial of the

victim’s preliminary hearing testimony. He argues that admitting this testimony

violated the Confrontation Clause. Under the deferential standard of AEDPA, see

28 U.S.C. § 2254(d), the California Court of Appeal did not err in denying this

claim. “Where testimonial evidence is at issue . . . the Sixth Amendment demands

2 . . . unavailability and a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 68 (2004). The California Court of Appeal reasonably

concluded that the victim was unavailable because she refused to testify. There is

no U.S. Supreme Court authority on the measures a trial court must take before

declaring unavailable a witness who is present in court and has no claim of

privilege but still refuses to testify. In the absence of any such authority, the

California Court of Appeal decision could not be “contrary to, or involve[] an

unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1).

We are not persuaded by Ortiz’s argument that the California Court of

Appeal violated Barber v. Page, 390 U.S. 719 (1968), which requires that a

prosecutor make a “good-faith effort” to produce an absent witness for the

unavailability exception to the confrontation requirement to apply. Id. at 724–25.

This case does not “fall[] squarely within” Barber. See Moses v. Payne, 555 F.3d

742, 753 (9th Cir. 2009). Barber concerned a prosecutor’s failure to secure a

witness’s physical presence at trial, see 390 U.S. at 723–25, whereas this case

involved a witness who was present but refused to testify. Therefore, the

California Court of Appeal did not commit AEDPA error when it concluded that

the witness was unavailable.

The California Court of Appeal also reasonably decided under Crawford that

3 Ortiz had an adequate opportunity to cross-examine the witness at the preliminary

hearing. See, e.g., Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“Generally

speaking, the Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent the defense might wish.”). As a result, admission of the witness’s

preliminary hearing testimony was not “contrary to, or . . . an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

2. Ortiz also asserts that the California Court of Appeal “fail[ed] ‘to consider

key aspects of the record’” in denying Ortiz’s Confrontation Clause claim and

therefore made an “unreasonable determination of the facts.” Milke v. Ryan, 711

F.3d 998, 1010 (9th Cir. 2013) (quoting Taylor v. Maddox, 366 F.3d 992, 1008

(9th Cir. 2004), abrogated on other grounds by Cullen v. Pinholster, 563 U.S. 170,

185 (2011)). Specifically, Ortiz contends that the California Court of Appeal

overlooked the fact that the trial court never corrected the prosecutor’s

misstatement that the witness had a right not to testify.

The record belies this argument. The California Court of Appeal did not

“fail ‘to consider’” the prosecutor’s misstatement; the first line of its opinion

acknowledged that “[r]egrettably, the prosecutor incorrectly informed the young

victim of several sex crimes that she had a choice whether to testify at trial.” But,

after recognizing this misstatement, the California Court of Appeal determined that

4 the trial court took “reasonable steps” to correct it and convey to the witness that

she had no right to refuse to testify. Under 28 U.S.C. § 2254(d)(2), the California

Court of Appeal’s factual determinations to this effect were not “actually

unreasonable” based on the evidence in the record. Taylor, 366 F.3d at 999.

3. Finally, Ortiz contends that the prosecutor committed misconduct by

telling the witness that she had the right not to testify at trial. Ortiz did not raise

his prosecutorial misconduct claim in his direct appeal to the California Supreme

Court, so he did not exhaust this claim. See 28 U.S.C. § 2254(b)(1)(A); Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (“[T]he prisoner must ‘fairly present’ his claim in

each appropriate state court (including a state supreme court with powers of

discretionary review) . . . .” (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)

(emphasis added))).

Ortiz concedes that his “presentation of the legal theory” as to his

prosecutorial misconduct claim was “less clear,” and that he did not cite any

prosecutorial misconduct cases in his brief. Yet he argues that his petition

adequately alerted the California Supreme Court to the substance of this claim

because it presented the operative facts, cited the Due Process Clause, and included

as an attachment the California Court of Appeal’s opinion, which considered this

claim. The Supreme Court has “rejected the contention that the petitioner satisfied

the exhaustion requirement of 28 U.S.C. § 2254(b) by presenting the state courts

5 only with the facts necessary to state a claim for relief” or “mak[ing] a general

appeal to a constitutional guarantee as broad as due process.” Gray v. Netherland,

518 U.S. 152, 163 (1996). Accordingly, the failure to exhaust precludes review of

Ortiz’s prosecutorial misconduct claim.

AFFIRMED.