Wilson v. Lynch

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY ROY WILSON, No. 24-2525 D.C. No. Petitioner - Appellant, 5:22-cv-06042-PCP v. MEMORANDUM* JEFF LYNCH,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California P. Casey Pitts, District Judge, Presiding

Argued and Submitted October 6, 2025 San Francisco, California

Before: NGUYEN and BRESS, Circuit Judges, and BENNETT, District Judge.**

Anthony Roy Wilson appeals the district court’s denial of his federal habeas

petition under 28 U.S.C. § 2254. He seeks relief from his 2019 California conviction

for second-degree murder and being a felon in possession of a firearm. He raises

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. three issues with the California Court of Appeal’s (CCA) decision to uphold his

conviction and sentence.1 We review the district court’s denial of the petition de

novo, but with the significant deference owed state court decisions under the

Antiterrorism and Effective Death Penalty Act’s (AEDPA) amendments to § 2254.

Frye v. Broomfield, 115 F.4th 1155, 1161–62 (9th Cir. 2024) (citing Harrington v.

Richter, 562 U.S. 86, 98–99 (2011)). We grant habeas relief from a state court

decision only when the decision was “‘objectively unreasonable,’” Catlin v.

Broomfield, 124 F.4th 702, 722 (9th Cir. 2024) (quoting Fauber v. Davis, 43 F.4th

987, 996–97 (9th Cir. 2022)), and “where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents.” Hampton v. Shinn, 143 F.4th 1047, 1061 (9th Cir. 2025) (citing

Harrington, 562 U.S. at 102). We have jurisdiction under 28 U.S.C. § 1291 and §

2253. We affirm the district court.

First, the CCA did not unreasonably apply clearly established federal law in

determining that there was no prosecutorial misconduct in Wilson’s trial. A

prosecutor’s misconduct is constitutional error when it “so infect[s] the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

1 The district court issued certificates of appealability (COA) as to Wilson’s first two issues on appeal: prosecutorial misconduct and denial of the mistrial motion. The district court did not issue a COA for Wilson’s third issue—that the prosecutor violated Wilson’s Sixth Amendment right to confront the witnesses against him.

2 24-2525 Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). Wilson testified in his own defense at his trial for the murder of

Anthony Stevens. During cross-examination, the prosecutor asked Wilson whether

Kermit Tanner, who was also charged for the murder, had told Wilson that Stevens

was carrying a gun before Wilson approached Stevens and killed him. Specifically,

the prosecutor asked Wilson, “Isn’t it true that Kermit Tanner had already told you

all, ‘Dude has a hammer’?” Shortly after asking this question, the prosecutor

introduced to the jury a transcript of five jail calls Wilson had made while awaiting

trial, in which he discussed his pending case.

Under AEDPA’s deferential standard of review, a fairminded jurist could

conclude that the prosecutor’s inclusion of the “dude has a hammer” statement in a

cross-examination question and the presentation to the jury of the jail call transcript

did not so infect Wilson’s trial with unfairness as to make his conviction a denial of

due process. Likewise, a fairminded jurist could conclude that the trial court’s

interview of each juror and admonition that the jury “completely disregard” both the

prosecutor’s questions and the jail call transcript were sufficient curative steps to

ensure that Wilson was not deprived of due process. Therefore, habeas relief is not

proper on this issue.

Second, the CCA did not make any unreasonable factual determinations in

deciding that the trial court had properly denied Wilson’s motion for mistrial.

3 24-2525 Section 2254(d)(2) dictates that a federal court “may only hold that a state court’s

decision was based on an unreasonable determination of the facts,” and thus grant a

habeas petition, if it is “convinced that an appellate panel, applying the normal

standards of appellate review, could not reasonably conclude that the finding is

supported by the record.” Pizzuto v. Yordy, 947 F.3d 510, 523 (9th Cir. 2019). The

CCA did not unreasonably determine any facts when it concluded that the trial

court’s jury admonition sufficiently cured any prejudice that might have been

created by the prosecutor’s “dude has a hammer” question and the presentation to

the jury of the jail call transcripts.

Third, Wilson raises an uncertified issue and alleges that the CCA

unreasonably applied clearly established federal law in finding no violation of his

Sixth Amendment right to confront the witnesses against him. Our review of a

district court’s denial of a habeas corpus petition is limited to those claims for which

the district court granted a certificate of appealability (COA). 28 U.S.C. § 2253(c).

We treat Wilson’s briefing as a motion to expand the COA. Cir. R. 22-1(e). We grant

the motion “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner meets this standard if

“reasonable jurists could debate whether” the district court should have resolved the

habeas petition differently or if the issues presented deserve encouragement to

proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v.

4 24-2525 McDaniel, 529 U.S. 473, 484 (2000)). We do not expand the COA here, as Wilson

cannot make a substantial showing of the denial of a constitutional right.2

For these reasons, the district court’s decision is AFFIRMED.

2 The Sixth Amendment forbids the admission of testimonial hearsay of an absent witness unless she is unavailable to testify and the defendant had a prior opportunity to cross-examine her. Smith v. Arizona, 602 U.S. 779, 783 (2024) (quoting Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). Given the district court’s correct application of AEDPA deference, Wilson cannot show the denial of a constitutional right on this uncertified issue because the prosecutor’s introduction of the “dude has a hammer” statement could reasonably be found to have been offered for its effect on the listener, not for its truth. This would defeat any claim of a Confrontation Clause violation, because the Clause applies only to hearsay and statements offered for their effect on the listener are not hearsay.

5 24-2525