Leif Taylor v. RAYMOND MADDEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEIF TAYLOR,
Petitioner-Appellant,
v.
RAYMOND MADDEN, Warden,
Respondent-Appellee.
No. 16-55411
D.C. No.
2:11-cv-10393-AG-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 15, 2017
Pasadena, California
Before: RAWLINSON** and OWENS, Circuit Judges, and RESTANI,*** Judge.
Petitioner Leif Taylor (“Taylor”) appeals from the district court’s denial of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Rawlinson was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Rawlinson
has read the briefs and reviewed the record.
*** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
MAR 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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his petition for a writ of habeas corpus. As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 28 U.S.C. § 2253, and
we affirm.
1. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
provides the appropriate standard of review. Taylor contends that we may review
de novo whether the state trial court complied with the conditional writ of habeas
corpus that this court ordered in Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004).
Although federal courts have authority to directly review whether states have
complied with earlier orders conditionally granting relief, see Leonardo v.
Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011), we decline to do so here. The
claims before us were raised by Taylor in a habeas petition that alleged the state
court violated his due process rights. We therefore apply AEDPA.
2. The California Court of Appeal did not unreasonably apply federal
law in deciding that the trial court did not abuse its discretion in denying Taylor’s
motion for a mistrial.1 See Renico v. Lett, 559 U.S. 766, 772–73 (2010). Taylor
argues that his due process rights were violated when a witness at his retrial
referenced his unlawfully-obtained, inadmissible confession, see Taylor, 366 F.3d
at 1018, and that the trial court should have granted his motion for a retrial on this
1 Because the California Court of Appeal provided the last reasoned
state court decision, we “look through” to that decision. See Cannedy v. Adams,
706 F.3d 1148, 1158–59 (9th Cir. 2013).

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basis. Though the U.S. Supreme Court has recognized that “[a] confession is like
no other evidence,” Arizona v. Fulminante, 499 U.S. 279, 296 (1991), and has
required state courts to retry defendants without unlawfully-obtained confessions,
id. at 302, the Court has never held that a defendant’s constitutional rights are
violated based on a witness’s reference to a confession. The California Court of
Appeal recognized this distinction in denying Taylor’s appeal.
Moreover, the U.S. Supreme Court has also held that unlawfully-obtained
confessions improperly admitted at trial are subject to harmless error review. See
Fulminante, 499 U.S. at 306–12. As the California Court of Appeal recognized,
the witness’s reference to the confession was ambiguous: Taylor’s associates had
already testified that Taylor admitted to shooting the victim. Any harm was further
mitigated by the trial court’s instruction to the jury that they should disregard any
testimony alleging that Taylor made a statement amounting to a confession and
that they should determine for themselves whether any statement rose to the level
of an admission or a confession. We therefore find that the reference to Taylor’s
confession was harmless error beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24 (1967).
3. The California Court of Appeal was not “objectively unreasonable” in
applying Jackson v. Virginia, 443 U.S. 307 (1979), and concluding that sufficient
evidence supported Taylor’s murder conviction. See Cavazos v. Smith, 565 U.S. 1,

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2 (2011) (per curiam). The California Court of Appeal found there was sufficient
evidence based on (1) testimony by two witnesses stating that they heard Taylor
admit to shooting the victim, (2) testimony by another witness identifying Taylor’s
alleged accomplice, (3) testimony by another witness who heard Taylor’s alleged
accomplice say something equivalent to “You shot him,” and (4) prior testimony
and statements placing Taylor and his alleged accomplice together the night of the
murder and indicating that one of them said “I think I killed the fool.” On this
record, we cannot say that “no rational trier of fact could have agreed with the
jury.” Id.
4. Taylor has not made “a substantial showing of the denial of a
constitutional right” so as to expand the certificate of appealability to include his
ineffective assistance of counsel claim. 28 U.S.C. § 2253(c)(2); Ninth Circuit Rule
22-1(e). Taylor argues that his counsel’s failure to challenge on Confrontation
Clause grounds a prosecutor’s line of questioning to an unresponsive witness was
unreasonable and prejudicial under Strickland v. Washington, 466 U.S. 668 (1984).
Assuming this line of questioning violated Taylor’s Confrontation Clause rights,
any error was harmless beyond a reasonable doubt. See United States v. Larson,
495 F.3d 1094, 1107–08 (9th Cir. 2007) (en banc). Evidence that the police found
.22 caliber ammunition in Taylor’s home established that Taylor had access to a
.22 caliber gun; the prosecutor’s leading questions were therefore merely

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cumulative.
AFFIRMED.

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