Larry L. Burns v. Robert G. Borg, Warden Attorney General of the State of California

5 F.3d 535, 1993 U.S. App. LEXIS 30764, 1993 WL 343107

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 9, 1993
• Docket: 92-56465
• Status: Published

Opinion

5 F.3d 535
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Larry L. BURNS, Petitioner-Appellant,
v.
Robert G. BORG, Warden; Attorney General of the State of
California, Respondents-Appellees.

No. 92-56465.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 3, 1993.*
Decided Sept. 9, 1993.

Before: BRUNETTI, KOZINSKI and BOGGS,** Circuit Judges.

MEMORANDUM***

Appellant Larry Burns appeals pro se the district court's denial of his habeas petition. We review its decision de novo. Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987).

A. Burns claims he was denied his Sixth Amendment right to confrontation because the trial court erroneously admitted the testimony of James Edwards from the trial of Burns's codefendant. But there was no confrontation issue: This evidence was offered on the issue of Edwards's credibility, not as substantive evidence. Admission of this testimony did not rise to the level of a constitutional violation. See Dutton v. Evans, 400 U.S. 74, 87-88 (1970); Bolton v. Nelson, 426 F.2d 807, 809 (9th Cir.1970).

B. Burns also contends the prosecution knowingly used perjured testimony when it presented Edwards's testimony. Edwards's testimony was certainly inconsistent over the course of the state proceedings. But contradictions and changes in a witness's testimony are insufficient to constitute perjury, see United States v. Flake, 746 F.2d 535, 539 (9th Cir.1984); and they do not create an inference, let alone prove, a prosecutor's knowing use of perjured testimony. See United States v. Baker, 850 F.2d 1365, 1371 (9th Cir.1988).

We find no violation of Burns's constitutional rights.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** The Honorable Danny J. Boggs, United States Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3