Shewfelt v. Alaska

4 F. App'x 328

Opinions

MEMORANDUM

Footnotes

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Appellant Paul D. Shewfelt appeals the district court’s summary judgment denying his petition for a writ of habeas corpus. The petition sought relief from a conviction for first degree sexual assault on the ground that Shewfelt’s involuntary absence from a playback of testimony for the jury violated his right to be present at all stages of trial. Shewfelt’s habeas petition was filed on January 26, 1998; it is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. See Jeffries v. Wood, 114 F.3d 1484, 1495-96 (9th Cir.1997) (en banc). Under AEDPA, we may not grant the writ unless the Alaska Supreme Court decision involved an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000).

Whether the right to attend a playback is “clearly established” under this standard presents a difficult question of first impression. However, we need not decide the question. The Alaska Supreme Court did not deny the right existed; it merely concluded that in this case any error was harmless. See State v. Shewfelt, 948 P.2d 470, 473 (Alaska 1997). We agree.

The infringement of a defendant’s right to attend trial proceedings is subject to harmless-error analysis. See Rushen v. Spain, 464 U.S. 114, 117 n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267. (1983). The effect of Shewfelt’s absence must therefore be assessed to determine whether, viewed in the context of the trial as a whole, the alleged error affected the trial outcome. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

The Alaska Supreme Court upheld the trial court’s post-judgment findings that there was no improper communication with the jurors during the playback proceedings and no other unusual circumstance — e.g., improper statements, selective playbacks, missing jurors.¹ See Shewfelt, 948 P.2d at 472-73. There was no bias in the presentation of evidence. The court clerk followed the normal replay procedure. The testimony of both Shewfelt and the victim was played, including the cross-examination of those witnesses. No representative from either party was present, and there is no indication that either party gained any tactical or psychological advantage. See id. at 471-73.

Under AEDPA, state court findings are presumptively correct unless the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.2000). Petitioner has not offered any such evidence. Therefore, the failure to include Shewfelt in the playback was harmless.

AFFIRMED.

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

1

. The only unusual occurrence is that the jurors arguably misunderstood the rule that the "foreperson” must request a playback to mean that "four persons” must request playback; it is difficult to see, however, how this has any impact on the harmless error analysis.