Trivonne Jay Barnett v. JEFF PREMO, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRIVONNE JAY BARNETT,
Petitioner-Appellant,
v.
JEFF PREMO, Superintendent,
Respondent-Appellee.
No. 17-35103
D.C. No. 6:14-cv-01471-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted May 8, 2018
Portland, Oregon
Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS,** District
Judge.
At Appellant Trivonne Barnett’s state trial for attempted murder and
firearms charges, the prosecutor stated to the trial judge that he would “get to”
charge a state’s witness with perjury if the witness provided testimony that was
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
FILED
JUN 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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different from that given at the witness’s second appearance before the grand jury.
Appellant contends that this state’s witness’s testimony would have been favorable
to the defense on cross-examination, and that the prosecutor’s statement and the
ensuing lengthy colloquy between the prosecutor and the trial judge caused the
state’s witness to invoke the Fifth Amendment.
After conviction and state court appeals, Appellant filed a federal petition
for a writ of habeas corpus, arguing that his due process rights to present his
defense were violated under Webb v. Texas, 409 U.S. 95 (1972). The district court
accepted the magistrate judge’s Findings and Recommendation and denied his
petition, but issued a certificate of appealability regarding the issue of prosecutorial
misconduct under Webb.
We affirm. The record in this case does not justify reversal. Webb did not
“clearly establish[]” that a defendant’s due process rights are violated when a
prosecutor’s threat of perjury charges causes a state’s witness to refuse to testify.
28 U.S.C. § 2254(d)(1); see United States v. Juan, 704 F.3d 1137, 1141 (9th Cir.
2013). Rather, the Supreme Court in Webb reversed the petitioner’s conviction
because the trial judge’s threatening remarks about perjury were “directed only at
the single witness for the defense” and “effectively drove that [defense] witness off
the stand.” Webb, 409 U.S. at 98; see also Earp v. Ornoski, 431 F.3d 1158, 1170
(9th Cir. 2005) (“It is well established that ‘substantial government interference

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with a defense witness’s free and unhampered choice to testify amounts to a
violation of due process.’”).
AFFIRMED.

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