Samuel Lam v. Barnes B. Gower

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL LAM,
Petitioner-Appellant,
v.
BARNES B. GOWER,
Respondent-Appellee.
No. 17-17488
D.C. No.
2:14-cv-01899-WBS-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted June 10, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District
Judge.
California state prisoner Samuel Lam appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for
inflicting corporal injury on a cohabitant, false imprisonment, brandishing a
FILED
JUN 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.

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firearm, and simple assault. Lam asserts that the state trial court violated his Sixth
Amendment rights by admitting two hearsay statements of the complaining
witness. The district court denied the petition under the strictures imposed by 28
U.S.C. § 2254 and we affirm.
1. The state court determined that the first statement was non-testimonial
because it was made in the context of a contemporaneous emergency. See Davis
v. Washington, 547 U.S. 813, 822 (2006) (“[S]tatements are nontestimonial when
made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of interrogation is to enable police assistance to
meet an ongoing emergency.”). To determine the primary purpose, we must
“objectively evaluate[] the circumstances in which the encounter occurs and the
statements and actions of the parties.” Lucero v. Holland, 902 F.3d 979, 989 (9th
Cir. 2018) (quoting Michigan v. Bryant, 562 U.S. 344, 359 (2011)). In this case,
the victim’s statement took place during an initial interrogation after officers
responded to a 911 call where the victim was visibly injured, shocked, and
confused. Given these circumstances, we cannot say that the state court judgment
was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded
disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).
2

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2. The state court also concluded that admission of the second statement,
although testimonial, was harmless because the statement was repetitive of the first
one and therefore not prejudicial. This was not an unreasonable application of the
law to the facts. See Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (the state court’s
determination of harmless error was a reasonable application of controlling
precedent). Lam has therefore not met his burden to show that the state court’s
decision was objectively unreasonable. See id.
We affirm.
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