NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARLIN L. ROYAL, No. 23-55260
Petitioner-Appellant, D.C. No. 3:21-cv-00834-WQH-WVG v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Argued and Submitted March 28, 2025 Pasadena, California
Before: BOGGS,** FRIEDLAND, and BRESS, Circuit Judges.
Petitioner-Appellant Marlin L. Royal appeals the denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a conviction for
first-degree murder and related charges in California state court. The district court
issued a certificate of appealability as to Royal’s claim that “the Superior Court
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. erred in admitting witness testimony under the past recollection recorded hearsay
exception because the prosecution failed to establish a vital element of that hearsay
exception, violating [Royal’s] federal constitutional right to confrontation and
cross-examination.”
On appeal, Royal now argues that the erroneous admission of those hearsay
statements made by a key prosecution witness rendered his trial so fundamentally
unfair that it violated due process.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo
a district court’s decision on a petition for a writ of habeas corpus, Sanders v.
Cullen, 873 F.3d 778, 793 (9th Cir. 2017), and we affirm.
1. As a preliminary matter, Royal’s due-process argument may not have
been exhausted in state court, where he raised only a Confrontation Clause claim.1
But we need not resolve this issue because “[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2);
see Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may
1 The exhaustion issue was not briefed by either party on appeal; indeed, the government argued for the first time at oral argument that Royal failed to exhaust his due-process argument. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”).
2 deny an unexhausted petition on the merits only when it is perfectly clear that the
applicant does not raise even a colorable federal claim.”). As explained below, it is
clear that Royal does not have a colorable due-process claim.
2. Royal argues that the erroneous admission of a handful of statements made
by a prosecution witness named L.N. “rendered [his] trial so arbitrary and
fundamentally unfair that it violated federal due process.”
On direct appeal, the California Court of Appeal determined that some of
L.N.’s testimony, relating to statements Royal had made in 2007, was improperly
admitted under California’s past-recollection-recorded hearsay exception because
the statements were not sufficiently “fresh” in L.N.’s mind when she repeated them
to detectives in 2013. People v. Royal, 43 Cal. App. 5th 121, 145–46 (2019). Royal’s
due-process argument is premised on the erroneous admission of those statements.
As explained by the California Court of Appeal, the trial court erroneously
admitted testimony from L.N. under the past-recollection-recorded exception that:
(1) Royal was upset that someone shot up his car; (2) someone had shot up Royal’s Range Rover; (3) Royal told L.N. he needed to go back to the crime scene to get the shotgun; (4) Royal started shaking and said “That’s it. That’s him” when he saw the news broadcast discussing [the victim’s] death; and (5) [the victim] begged Royal not to shoot him. Also, on redirect, the prosecutor used the past recollection recorded exception to establish: (a) L.N. tried to move up her meeting with law enforcement; and (b) she delivered gas to Royal on the night of [the victim’s] death.
3 Id. at 143. But the California Court of Appeal concluded that the admission of the
above-described testimony did not violate Royal’s Sixth Amendment rights and, in
any event, was harmless, considering other properly admitted evidence presented at
trial. Id. at 146–47.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
“forecloses federal habeas relief for ‘any claim that was adjudicated on the merits in
State court’ unless the state court’s decision was (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States’; or (2) ‘based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’” Carter
v. Davis, 946 F.3d 489, 501 (9th Cir. 2019) (quoting 28 U.S.C. § 2254(d)). Royal
contends that the California Court of Appeal’s harmless-error holding is not owed
deference because it was “contrary to precedent” insofar as the court improperly
applied the harmless-error standard under People v. Watson, 46 Cal. 2d 818, 836
(1956), rather than the standard under Chapman v. California, 386 U.S. 18, 24
(1967). See Hall v. Haws, 861 F.3d 977, 989 n.7 (9th Cir. 2017) (explaining that
“[t]he Watson standard is used to review non-constitutional, trial type errors,” while
“the more stringent standard, under Chapman v. California, is used to review errors
of constitutional magnitude”).
4 But even without applying AEDPA deference to the California Court of
Appeal’s harmlessness determination, we conclude that the erroneous admission of
the hearsay statements under the past-recollection-recorded exception was harmless
when evaluated de novo. See Stevens v. Davis, 25 F.4th 1141, 1165 (9th Cir. 2022).
In cases involving trial-type errors like this one, a petitioner must satisfy the
standard in Brecht v. Abrahamson, 507 U.S. 619 (1993), which asks whether the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARLIN L. ROYAL, No. 23-55260
Petitioner-Appellant, D.C. No. 3:21-cv-00834-WQH-WVG v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding
Argued and Submitted March 28, 2025 Pasadena, California
Before: BOGGS,** FRIEDLAND, and BRESS, Circuit Judges.
Petitioner-Appellant Marlin L. Royal appeals the denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a conviction for
first-degree murder and related charges in California state court. The district court
issued a certificate of appealability as to Royal’s claim that “the Superior Court
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. erred in admitting witness testimony under the past recollection recorded hearsay
exception because the prosecution failed to establish a vital element of that hearsay
exception, violating [Royal’s] federal constitutional right to confrontation and
cross-examination.”
On appeal, Royal now argues that the erroneous admission of those hearsay
statements made by a key prosecution witness rendered his trial so fundamentally
unfair that it violated due process.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo
a district court’s decision on a petition for a writ of habeas corpus, Sanders v.
Cullen, 873 F.3d 778, 793 (9th Cir. 2017), and we affirm.
1. As a preliminary matter, Royal’s due-process argument may not have
been exhausted in state court, where he raised only a Confrontation Clause claim.1
But we need not resolve this issue because “[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2);
see Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may
1 The exhaustion issue was not briefed by either party on appeal; indeed, the government argued for the first time at oral argument that Royal failed to exhaust his due-process argument. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”).
2 deny an unexhausted petition on the merits only when it is perfectly clear that the
applicant does not raise even a colorable federal claim.”). As explained below, it is
clear that Royal does not have a colorable due-process claim.
2. Royal argues that the erroneous admission of a handful of statements made
by a prosecution witness named L.N. “rendered [his] trial so arbitrary and
fundamentally unfair that it violated federal due process.”
On direct appeal, the California Court of Appeal determined that some of
L.N.’s testimony, relating to statements Royal had made in 2007, was improperly
admitted under California’s past-recollection-recorded hearsay exception because
the statements were not sufficiently “fresh” in L.N.’s mind when she repeated them
to detectives in 2013. People v. Royal, 43 Cal. App. 5th 121, 145–46 (2019). Royal’s
due-process argument is premised on the erroneous admission of those statements.
As explained by the California Court of Appeal, the trial court erroneously
admitted testimony from L.N. under the past-recollection-recorded exception that:
(1) Royal was upset that someone shot up his car; (2) someone had shot up Royal’s Range Rover; (3) Royal told L.N. he needed to go back to the crime scene to get the shotgun; (4) Royal started shaking and said “That’s it. That’s him” when he saw the news broadcast discussing [the victim’s] death; and (5) [the victim] begged Royal not to shoot him. Also, on redirect, the prosecutor used the past recollection recorded exception to establish: (a) L.N. tried to move up her meeting with law enforcement; and (b) she delivered gas to Royal on the night of [the victim’s] death.
3 Id. at 143. But the California Court of Appeal concluded that the admission of the
above-described testimony did not violate Royal’s Sixth Amendment rights and, in
any event, was harmless, considering other properly admitted evidence presented at
trial. Id. at 146–47.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
“forecloses federal habeas relief for ‘any claim that was adjudicated on the merits in
State court’ unless the state court’s decision was (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States’; or (2) ‘based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’” Carter
v. Davis, 946 F.3d 489, 501 (9th Cir. 2019) (quoting 28 U.S.C. § 2254(d)). Royal
contends that the California Court of Appeal’s harmless-error holding is not owed
deference because it was “contrary to precedent” insofar as the court improperly
applied the harmless-error standard under People v. Watson, 46 Cal. 2d 818, 836
(1956), rather than the standard under Chapman v. California, 386 U.S. 18, 24
(1967). See Hall v. Haws, 861 F.3d 977, 989 n.7 (9th Cir. 2017) (explaining that
“[t]he Watson standard is used to review non-constitutional, trial type errors,” while
“the more stringent standard, under Chapman v. California, is used to review errors
of constitutional magnitude”).
4 But even without applying AEDPA deference to the California Court of
Appeal’s harmlessness determination, we conclude that the erroneous admission of
the hearsay statements under the past-recollection-recorded exception was harmless
when evaluated de novo. See Stevens v. Davis, 25 F.4th 1141, 1165 (9th Cir. 2022).
In cases involving trial-type errors like this one, a petitioner must satisfy the
standard in Brecht v. Abrahamson, 507 U.S. 619 (1993), which asks whether the
error had a “substantial and injurious effect or influence in determining the jury’s
verdict,” id. at 638 (quotation marks omitted), “regardless of the type of harmless
error review conducted by the state court[,]” Laboa v. Calderon, 224 F.3d 972, 977
(9th Cir. 2000). And Royal cannot show that the erroneously admitted statements
had a “substantial and injurious effect” on the verdict under Brecht, 507 U.S. at 638
(quotation marks omitted), because other similar or duplicative evidence was
properly admitted, including that L.N. “had seen Royal arm himself with a shotgun,
that Royal had called and asked to be picked up at the supermarket on the night of
the shooting, and that after he was picked up, Royal stated he had shot someone.”
Royal, 43 Cal. App. 5th at 147. The jury also heard evidence that indicated Royal’s
cell phone had been moving towards the crime scene at the same time as the victim’s
phone and was near the crime scene around the estimated time of the murder, id. at
125, and the jury further heard that Royal was later found to be in possession of
shotgun shells consistent with those used in the murder, id. at 125, 127.
5 At bottom, Royal is unable to establish “actual prejudice” from the erroneous
admission of L.N.’s statements, which disposes of his claim. Brecht, 507 U.S. at
637.
AFFIRMED.