Clayton v. Castro

Full title: Michael Lamont CLAYTON, Petitioner--Appellant, v. Roy CASTRO…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 17, 2003

62 F. App'x 166 (9th Cir. 2003)

Opinion

62 Fed.Appx. 166 (9th Cir. 2003) Michael Lamont CLAYTON, Petitioner--Appellant, v. Roy CASTRO, Respondent--Appellee. No. 01-56513. D.C. No. CV-99-11785-R. United States Court of Appeals, Ninth Circuit. April 17, 2003

Argued and Submitted April 8, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant appealed from an order of the United States District Court for the Central District of California, Manuel L. Real, J., which denied his habeas petition challenging his 1997 jury conviction and life sentence for attempted first-degree murder, use of a firearm, and intentional infliction of great bodily injury. The Court of Appeals held that any error in admitting investigation officer's testimony about a conversation with a 10-year-old witness, upon which the officer relied in assembling a "six-pack" photo lineup that included a photograph of defendant, was harmless.

Affirmed. Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding.

Before SCHROEDER, Chief Judge, THOMPSON, and GRABER, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

California state prisoner Michael Lamont Clayton appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his 1997 jury conviction and life sentence for attempted first-degree murder, use of a firearm, and intentional infliction of great bodily injury. He argues that the state trial court improperly admitted hearsay evidence in violation of his rights under the Confrontation Clause of the United States Constitution. Specifically, he challenges the admission of an investigation officer's testimony about a conversation with a 10-year-old witness, upon which the officer relied in assembling a "six-pack" photo lineup that included a photograph of Clayton.

There was no hearsay admitted in this case, as no out-of-court statement was admitted for the truth of the matter asserted. See Fed.R.Evid. 801(c); Cal. Evid.Code § 1200(a). Even if Clayton were correct that the officer's testimony should have been excluded, any error in admitting it was harmless. Clayton and the victim had known each other for fifteen years prior to the shooting, and at trial the victim positively identified Clayton as the shooter.

We cannot say that the challenged testimony " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We certainly cannot say that the state court's adjudication was

Page 168.

"contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), as required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.), cert. denied, 537 U.S. 851, 123 S.Ct. 205, 154 L.Ed.2d 83 (2002) (explaining standard of review under AEDPA).

AFFIRMED.