Brian Joseph McMonagle v. DON L. MEYER, Chief Probation Officer, Sacramento County

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN JOSEPH MCMONAGLE,
Petitioner-Appellant,
v.
DON L. MEYER, Chief Probation Officer,
Sacramento County,
Respondent-Appellee.
No. 16-16822
D.C. No. 2:11-cv-02115-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Submitted September 15, 2017**
San Francisco, California
Before: GOULD, TALLMAN, and WATFORD, Circuit Judges.
Brian McMonagle appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition challenging his California Superior Court conviction for driving
under the influence of alcohol. McMonagle claims that the state’s introduction of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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a lab report analyzing his blood alcohol content, without supporting testimony
from the analyst who prepared the report, violated his right to confrontation and
resulted in prejudice at his trial. We have jurisdiction pursuant to 28 U.S.C. §
2253, and we review de novo the district court’s denial of habeas relief. Yee v.
Duncan, 463 F.3d 893, 897 (9th Cir. 2006). We affirm.
Despite the acknowledged Confrontation Clause violation,1 McMonagle
fails to show that the error had a substantial and injurious effect or influence on the
jury’s verdict that he nonetheless drove under the influence of alcohol. See Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). The evidence presented on this charge
by a crime lab supervisor and one of the arresting CHP officers who witnessed
McMonagle’s driving was “overwhelming”:
“[McMonagle] stopped abruptly and irregularly for a red light, drove
abnormally slow, turned abruptly, smelled of alcohol, mumbled, admitted
consuming alcohol, had red, watery eyes, was slow and unsteady on his feet,
and had difficulty walking. In addition, the criminalist, an expert, testified
that such symptoms are consistent with intoxication.”
Thus, it was reasonable for the state appellate court to find the confrontation
error harmless as to the lesser included charge.
1 The Appellate Division of the California Superior Court, citing Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), found that McMonagle was denied
confrontation under the Sixth Amendment and reversed his more serious
convictions for driving with a blood alcohol level of .08% or more, as well as
driving a motor vehicle with a blood alcohol concentration of .15% or more. This
was clearly a reasonable application of federal law, see 28 U.S.C. § 2254(d)(1),
and the state’s arguments to the contrary are unavailing.

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AFFIRMED.

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