Trivonne Barnett v. Jeff Premo

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRIVONNE JAY BARNETT, No. 17-35103

Petitioner-Appellant, D.C. No. 6:14-cv-01471-YY

v. MEMORANDUM* JEFF PREMO, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted May 8, 2018 Portland, Oregon

Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS,** District Judge.

At Appellant Trivonne Barnett’s state trial for attempted murder and

firearms charges, the prosecutor stated to the trial judge that he would “get to”

charge a state’s witness with perjury if the witness provided testimony that was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation. different from that given at the witness’s second appearance before the grand jury.

Appellant contends that this state’s witness’s testimony would have been favorable

to the defense on cross-examination, and that the prosecutor’s statement and the

ensuing lengthy colloquy between the prosecutor and the trial judge caused the

state’s witness to invoke the Fifth Amendment.

After conviction and state court appeals, Appellant filed a federal petition

for a writ of habeas corpus, arguing that his due process rights to present his

defense were violated under Webb v. Texas, 409 U.S. 95 (1972). The district court

accepted the magistrate judge’s Findings and Recommendation and denied his

petition, but issued a certificate of appealability regarding the issue of prosecutorial

misconduct under Webb.

We affirm. The record in this case does not justify reversal. Webb did not

“clearly establish[]” that a defendant’s due process rights are violated when a

prosecutor’s threat of perjury charges causes a state’s witness to refuse to testify.

28 U.S.C. § 2254(d)(1); see United States v. Juan, 704 F.3d 1137, 1141 (9th Cir.

2013). Rather, the Supreme Court in Webb reversed the petitioner’s conviction

because the trial judge’s threatening remarks about perjury were “directed only at

the single witness for the defense” and “effectively drove that [defense] witness off

the stand.” Webb, 409 U.S. at 98; see also Earp v. Ornoski, 431 F.3d 1158, 1170

(9th Cir. 2005) (“It is well established that ‘substantial government interference

2 with a defense witness’s free and unhampered choice to testify amounts to a

violation of due process.’”).

AFFIRMED.