Graves v. Roe

¶1MEMORANDUM3

¶2Earnest Anthony Graves, a prisoner in state custody, appeals the denial of his petition for habeas corpus. We granted a certificate of appealability limited to the issue of whether state appellate counsel was constitutionally ineffective for failing to argue that Graves’ Sixth Amendment rights to confrontation and cross-examination were violated by admission of a co-defendant’s out of court statement at trial. The district court had jurisdiction over the *522petition by virtue of 28 U.S.C. § 2254; we have jurisdiction over the appeal by virtue of 28 U.S.C. § 2253(c)(3). We affirm the denial of the writ.

¶3The facts are well known to the parties and will be repeated only so far as is necessary to explain our decision. At Graves’ state court murder trial, an out of court statement of his co-defendant Terry Hemal Jordan was permitted into testimony. Shortly before the murders, Jordan allegedly said to co-defendant Delano Johnson, in prosecution witness Alan Marsh’s presence, that “[Graves] say that we can jack 'em.’ ” The meaning of this statement was that Graves was telling Jordan and Johnson to either kill the victims or steal the cash they were carrying in a shoe box. Jordan did not testify and thus was not subject to cross-examination.

¶4On direct appeal, counsel for Graves did not raise a Bruton argument. In Johnson’s direct appeal the issue was raised, leading that court to note:

Preliminarily, we question whether the parties have correctly framed the issue. The statement was an out-of-court statement by Jordan, purporting to recount an out-of-court statement by Graves. As to Graves, if offered to show that he actually authorized a robbery, the statement would be hearsay. As to defendants Johnson and Jordan, however, the statement arguably was relevant and admissible for the nonhearsay purpose of showing that it was made.

¶5Given the California appellate court’s statement, Graves argues it was ineffective assistance for his appellate counsel to fail to raise the issue in his appeal.

¶6Ineffective assistance of counsel is based on the Sixth Amendment right to counsel, which exists “in order to protect the fundamental right to a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)(quoting Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A claim for ineffective assistance must meet the two-part test advanced by the Stricklandcourt. First, petitioner must show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, [petitioner] must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial [or in case, appeal] ... whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. More precisely, petitioner must show that (1) his attorney’s performance was unreasonable under prevailing professional norms, and, unless prejudice is presumed, that (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.

¶7Under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny, the admission of a hearsay confession of a non-testifying co-defendant violates the defendant’s rights under the Confrontation Clause when that statement facially, expressly, clearly, or powerfully implicates the defendant. Id. at 135-36, 88 S.Ct. 1620; Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (limiting Bruton to statements that are incriminating on their face or expressly incriminating since statements that only become incriminating when linked with other evidence are inherently less prejudicial). However, where the hearsay statement sought to be introduced falls within the co-conspirator exception to the hearsay rule, there can be no separate Confrontation Clause challenge. Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Under Bourjaily, where, as here, the hearsay statement is made in the course and in furtherance of the conspiracy, the Confrontation Clause does not re*523quire a court to embark upon an independent inquiry into the reliability of the statements. Id.

¶8The failure of Graves’ appellate counsel to raise a Brutonissue was not ineffective assistance since, under Bourjaily, any such argument would have been futile. See Rupe v. Wood, 98 F.3d 1434, 1445 (9th Cir.1996) (failure to take a futile action can never be deficient performance), cert. denied, 519 U.S. 1142, 117 S.Ct. 1017, 136 L.Ed.2d 894 (1997). As the state trial court determined that Marsh’s testimony was admissible under California’s co-conspirator exception4, there was no additional Confrontation Clause argument for appellate counsel to pursue. Accordingly, the petition for writ of habeas corpus was properly denied by the district court.

¶9AFFIRMED.