FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORLANDO S. BURGOS, 

Petitioner-Appellant, 

 v. 

RAYMOND MADDEN, Warden, 

Respondent-Appellee.

No. 20-55816 

D.C. No. 

2:17-cv-00179-

SVW-SP 

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted June 5, 2023

Pasadena, California

Filed August 25, 2023

Before: MILAN D. SMITH, JR., DAVID F. 

HAMILTON,

* and DANIEL P. COLLINS Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

* The Honorable David F. Hamilton, United States Circuit Judge for the 

U.S. Court of Appeals for the Seventh Circuit, sitting by designation.
2 BURGOS V. MADDEN

SUMMARY**

Habeas Corpus 

The panel affirmed the district court’s denial of Orlando 

Burgos’s 28 U.S.C. § 2254 habeas corpus petition 

challenging his California conviction for making criminal 

threats and assault with a deadly weapon. 

The victim, Martin Moya Lopez, was not authorized to 

reside in the United States at the time of the crimes. Prior to 

testifying in Burgos’s trial, Moya received a U-Visa, which 

provides immigration benefits for victims of certain crimes 

who cooperate with law enforcement. At trial, the court 

barred Burgos from cross-examining Moya about his U-Visa 

status, which Burgos asserted was relevant to Moya’s 

credibility. The California Court of Appeal determined that 

the trial court violated the Confrontation Clause by 

precluding the cross-examination, but the error was harmless 

because the time-lapse between when Moya reported the 

crimes and when he applied for the U-Visa rendered any 

inference that his account was intended to bolster his 

application for temporary residence in the United States 

speculative at best. 

Under the standard prescribed in Brecht v. Abrahamson, 

507 U.S. 619 (1993), which requires a habeas petitioner to 

persuade the court that a constitutional error at trial had a 

“substantial and injurious effect or influence” on the verdict, 

the panel held that Burgos is not entitled to habeas 

relief. The panel wrote that nothing in the record indicates 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
BURGOS V. MADDEN 3 

 

that Moya had an eye toward immigration benefits when he 

made his initial statement implicating Burgos; rather, the 

record suggests the opposite. The panel therefore did not 

harbor the requisite “grave doubt” that the jury would have 

convicted Burgos had it known about Moya’s immigration 

status.

COUNSEL

Dale F. Ogden, Jr. (argued) and Michael D. Weinstein, 

Assistant Federal Public Defenders; Cuauhtemoc Ortega, 

Federal Public Defender; Mara Gonzales-Souto and Justin 

Van Ligten, Certified Law Students; Federal Public 

Defender’s Office, Los Angeles, California, for PetitionerAppellant. 

Julie A. Harris (argued), Deputy Attorney General; Kenneth 

C. Byrne, Supervising Deputy Attorney General; Susan S. 

Pithey, Senior Assistant Attorney General, Lance E. 

Winters, Chief Assistant Attorney General; Rob Bonta, 

California Attorney General; California Attorney General’s 

Office, Los Angeles, California, for Respondent-Appellee.
4 BURGOS V. MADDEN

OPINION

M. SMITH, Circuit Judge:

Orlando Burgos appeals the denial of his 28 U.S.C. 

§ 2254 habeas petition. Burgos was convicted in California 

state court of making criminal threats and assault with a 

deadly weapon. The victim, Martin Moya Lopez, was not 

authorized to reside in the United States at the time of the 

crimes. Prior to testifying in Burgos’s trial, Moya received 

a U-Visa, which provides immigration benefits for victims 

of certain crimes who cooperate with law enforcement. At 

trial, the court barred Burgos from cross-examining Moya 

about his U-Visa status, which Burgos asserted was relevant 

to Moya’s credibility. The California Court of Appeal

determined that the trial court erred by precluding the crossexamination, but the error was harmless because the timelapse between when Moya reported the crimes and when he 

applied for the U-Visa “render[ed] any inference that his 

account was intended to bolster his application for temporary 

residence in the United States speculative at best.” Burgos 

filed this habeas action in federal district court, and his 

petition was denied. Under the lenient standard prescribed 

in Brecht v. Abrahamson, 507 U.S. 619 (1993), we hold that 

Burgos is not entitled to habeas relief. 

BACKGROUND

This case arises from a string of criminal incidents that 

occurred in January 2012, only one of which directly 

involved the petitioner.

1 In late 2011, Martin Moya Lopez 

1 This abbreviated version of the underlying facts is based on the 

statement of facts set forth by the California Court of Appeal, which is 
BURGOS V. MADDEN 5

and his common-law wife Gloria Abarques allowed a 

woman named Maya Hermosillo to live with them in their 

home in Panorama City, California. Hermosillo introduced

Moya and Abarques to Edward Zuniga, a local gang member 

and Burgos’s eventual co-defendant. Soon thereafter, 

Zuniga brought a used car to Moya and Abarques’s home 

and tried to sell it to them. They declined, but Zuniga would 

not take no for an answer. He told them they owed him $800 

for the car and left it in front of their house for over a week. 

Then, on the evening of January 6, 2012, Hermosillo, 

Zuniga, and a few others robbed Moya and Abarques’s 

home. Abarques was home alone during the robbery. When 

Moya arrived home later that night, he saw people removing 

items from the house, and decided to stay with his uncle for 

the night. 

The next morning, Moya was kidnapped from his uncle’s 

house. Hermosillo and three men took Moya to a garage 

where a group of ten people, including Burgos, were waiting. 

Burgos forced Moya to the ground, hit him in the head and 

back, and threatened him with a gun. At some point, Zuniga 

arrived at the garage and told Moya that he now owed him 

double for the car and needed to pay within twenty-four 

hours. A few days later, Moya went to his uncle to borrow 

money to pay Zuniga. While Moya was at his uncle’s house, 

Zuniga showed up, demanded payment, and hit Moya across 

the face with the flat side of a knife. 

On January 9, Abarques reported the entire matter to the 

police. On January 23, LAPD Detective Manuel Armijo 

interviewed Abarques and Moya about the robbery, Moya’s 

presumed correct. See 28 U.S.C. § 2254(e)(1); Vasquez v. Kirkland, 572 

F.3d 1029, 1031 n.1 (9th Cir. 2009).
6 BURGOS V. MADDEN

kidnapping, and his subsequent assault by Zuniga. Burgos 

and Zuniga were later charged with several crimes related to 

the incidents. 

Sometime after January 23, 2012, the government placed 

an immigration hold on Moya, who was undocumented, and 

he voluntarily left the United States for Mexico. On October 

18, 2012, Moya was paroled back into the United States and 

received U-Visa immigration status, which is available to 

victims of certain crimes who help law enforcement.

2 In a 

declaration accompanying his application, he stated: “I am 

applying for a U-Visa based on the horrific kidnapping, 

extortion, and felonious assault I fell victim to on or about 

January 7, 2012,” and provided details about the crimes. 

At Burgos and Zuniga’s pretrial hearing, defense counsel 

argued that they should be permitted to raise Moya’s U-Visa 

status for impeachment purposes, asserting its relevance to 

Moya’s credibility. The court ruled that the defense could 

ask Moya about any inconsistencies between his U-Visa 

declaration and his testimony but could not refer to his 

immigration status. 

At trial, Moya was the only witness to directly implicate 

Burgos in the crimes. Moya was subject to crossexamination regarding his initial statement to Detective 

Armijo (though the statements in Moya’s U-Visa declaration 

were not introduced). Moya’s testimony was largely 

2 A U-Visa is a “nonimmigrant status” that is “is set aside for victims of 

certain crimes who have suffered mental or physical abuse and are 

helpful to law enforcement or government officials in the investigation 

or prosecution of criminal activity.” See USCIS, Victims of Criminal

Activity: U Nonimmigrant Status (2023), 

https://www.uscis.gov/humanitarian/victims-of-human-trafficking-andother-crimes/victims-of-criminal-activity-u-nonimmigrant-status. 
BURGOS V. MADDEN 7

consistent with the story he told Detective Armijo, though a

few discrepancies were revealed—namely, the exact date of 

the kidnapping, whether he was taken from his uncle’s house 

near a park or from the park itself, and whether Burgos was 

in the vehicle that took him to the garage. The jury credited 

Moya’s testimony, and Burgos was convicted of making 

criminal threats pursuant to Cal. Penal Code § 422(a) and 

assault with a firearm pursuant to Cal. Penal Code 

§ 245(a)(2). 

On direct appeal, Burgos argued that the trial court 

unconstitutionally prevented him from cross-examining 

Moya about his immigration status. The California Court of 

Appeal (CCA) concluded that the trial court violated the 

Confrontation Clause by restricting cross-examination 

because Moya’s U-Visa was “relevant to show motive 

and/or bias, and was relevant to his credibility,” but that the 

error was harmless beyond a reasonable doubt. The CCA 

emphasized that more than eight months had passed between 

when Moya reported the crime and when he applied for a UVisa, “rendering any inference that his account was intended 

to bolster his application for temporary residence in the 

United States speculative at best.” The California Supreme 

Court denied review. 

Burgos filed this habeas action in the Central District of 

California, challenging the CCA’s harmless determination. 

The district court denied the petition, finding the CCA’s 

harmlessness determination was not unreasonable because 

“the inference of motive or bias was largely negated by the 

fact that Moya reported the crimes eight months prior to 

filing a U-Visa application.” We granted a certificate of 

appealability. 
8 BURGOS V. MADDEN

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 

2253. We review a district court’s denial of a 28 U.S.C. 

§ 2254 petition de novo. Bolin v. Davis, 13 F.4th 797, 804 

(9th Cir. 2021). 

Burgos’s habeas claim is subject to both the 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), 28 U.S.C. § 2254(d), and Brecht v. Abrahamson, 

507 U.S. 619 (1993). “[A] federal court must deny relief to 

a state habeas petitioner who fails to satisfy either this 

Court’s equitable precedents [including Brecht] or AEDPA. 

But to grant relief, a court must find that the petitioner has 

cleared both tests.” Brown v. Davenport, 142 S. Ct. 1510, 

1524 (2022).

Pursuant to AEDPA, a habeas petitioner cannot obtain 

relief unless the state court’s decision is (1) “contrary to, or 

involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the 

United States”; or (2) “based on an unreasonable 

determination of the facts in light of the evidence presented 

in the State court proceeding.” 28 U.S.C. § 2254(d). 

Pursuant to Brecht, we cannot grant relief unless the

constitutional error had a “substantial and injurious effect or 

influence” on the verdict. 507 U.S. at 623 (quoting 

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

ANALYSIS

I

The Confrontation Clause protects a defendant’s right to 

impeach a witness against him by “cross-examination 

directed toward revealing possible biases, prejudices, or 

ulterior motives.” Davis v. Alaska, 415 U.S. 308, 316 
BURGOS V. MADDEN 9

(1974). Confrontation Clause errors are subject to harmlesserror analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 

(1986). Once a reviewing court has determined that the 

preclusion of cross-examination was constitutional error, 

“[t]he correct inquiry is whether, assuming that the 

damaging potential of the cross-examination were fully 

realized, a reviewing court might nonetheless say that the 

error was harmless beyond a reasonable doubt.” Id. 

Whether a Confrontation Clause error is harmless “depends 

upon a host of factors, . . . includ[ing] the importance of the 

witness’ testimony in the prosecution’s case, whether the 

testimony was cumulative, the presence or absence of 

evidence corroborating or contradicting the testimony of the 

witness on material points, the extent of cross-examination 

otherwise permitted, and . . . the overall strength of the 

prosecution’s case.” Id.

The parties dispute whether the CCA reasonably applied

Van Arsdall’s harmlessness framework. We need not decide 

that question, however, because Burgos has failed to carry 

his burden under Brecht. See Davenport, 142 S. Ct. at 1524. 

II

Brecht requires a habeas petitioner to persuade the court 

that a constitutional error at trial had a “substantial and 

injurious effect or influence” on the verdict. 507 U.S. at 623. 

An error has such an effect or influence if it leaves the habeas 

court in “‘grave doubt’—not absolute certainty—about 

whether the trial error affected the verdict’s outcome.” 

Davenport, 142 S. Ct. at 1525 (quoting O’Neal v. McAninch, 

513 U.S. 432, 435 (1995)); see also Sessoms v. Grounds, 776 

F.3d 615, 630 (9th Cir. 2015) (describing the Brecht inquiry 

as whether the reviewing court “can fairly determine that 
10 BURGOS V. MADDEN

[the constitutional error] did not substantially sway the jury 

to convict”). 

In this case, the question is whether we harbor “grave 

doubt” that the jury would have convicted Burgos were he

permitted to cross-examine Moya about the immigration 

benefit he received as a cooperating witness. We have no 

such doubt. 

Burgos asserts that, if members of the jury heard 

testimony about Moya’s U-Visa application, they may have 

inferred that Moya was lying or exaggerating his account in 

order to get immigration benefits. But as the CCA reasoned, 

the time-lapse between Moya’s first report of the crimes and 

his U-Visa application significantly undermines this theory. 

Moya was locked into his story as of January 2012 when he 

made his initial statement to Detective Armijo. Indeed, 

Moya was cross-examined at trial with his January 2012 

statement, and despite a few discrepancies, the jury found 

Moya’s story consistent enough to convict. Accordingly,

Moya’s U-Visa application would be relevant to his 

credibility only if the jury believed that Moya was aware of 

(and motivated by) the prospect of obtaining U-Visa status

when he made his statement in January 2012.

In our view, nothing in the record indicates that Moya 

had an eye toward immigration benefits when he made his 

initial statement implicating Burgos. Rather, the record

suggests the opposite. Moya first spoke to Detective Armijo 

on January 23, 2012, but did not apply for U-Visa status until 

October 18, 2012—almost nine months later. If Moya had 

lied or exaggerated his story to qualify for a U-Visa, it seems 

unlikely he would have waited so long to file an application. 

Indeed, after Moya spoke with Detective Armijo, an 
BURGOS V. MADDEN 11

immigration hold was placed on Moya, and he was removed 

to Mexico without seeking immigration relief.

Moreover, at Burgos and Zuniga’s preliminary hearing

outside the presence of the jury, the defense was permitted

to ask Moya about his U-Visa, and Moya made several 

statements casting doubt on the defense’s theory that he 

reported the crimes to obtain immigration benefits. He

explicitly denied knowing that U-Visa status would allow 

him to remain in the United States after trial. He stated that 

he assumed that after testifying, he would be returned to 

Mexico.3 He also stated that, if his goal was to remain in the 

United States lawfully, he would have legally married 

Abarques, a US citizen. 

In response, Burgos asserts that there are other plausible 

explanations for why Moya waited to file his U-Visa 

application. Specifically, he notes that Moya left the United 

States for Mexico after the incident and may have had 

limited access to legal resources while in Mexico. But this 

is wholly speculative given the record before us. At bottom, 

there is nothing to suggest that Moya was motivated by the 

prospect of immigration benefits when he made his initial 

statement about the crimes, which the jury found to be 

sufficiently consistent with his testimony at trial. 

Accordingly, is it not likely that cross-examination about 

Moya’s U-Visa would have “substantially sway[ed] the 

jury.” Sessoms, 776 F.3d at 630.

3 Moya’s assumption was incorrect—U-Visa recipients are authorized to 

remain in the United States for up to four years and may apply for 

adjustment of status during that time. See USCIS, Victims of Criminal 

Activity: U Nonimmigrant Status (2023), 

https://www.uscis.gov/humanitarian/victims-of-human-trafficking-andother-crimes/victims-of-criminal-activity-u-nonimmigrant-status. 
12 BURGOS V. MADDEN

Nevertheless, Burgos argues that we must find prejudice

because Moya’s testimony was essential to the government’s 

case. It is true that Moya was the only witness to testify 

directly to Burgos’s involvement in the crimes,

4 and there 

was no physical evidence implicating Burgos. As the 

prosecution stated in closing, “the elephant in the room” was 

whether the jury believed Moya. 

Indeed, in cases involving restrictions on the crossexamination of the sole witness in a case, we have 

sometimes found prejudice under Brecht. See e.g., Ortiz v. 

Yates, 704 F.3d 1026, 1039–40 (9th Cir. 2012) (finding 

actual prejudice when defense was prevented from crossexamining “victim and sole eyewitness . . . [who] provided 

the only direct evidence linking [defendant] to her injuries” 

about her “potential ulterior motives”); Holley v. 

Yarborough, 568 F.3d 1091, 1099–1000 (9th Cir. 2009)

(finding prejudice when defense was not permitted to crossexamine victim and sole witness about previous statements 

assertedly evincing her propensity to exaggerate); see also

Van Arsdall, 475 U.S at 684 (listing “the importance of the 

witness’ testimony” and “whether the testimony is 

cumulative” as factors relevant to harmlessness). However,

for the reasons explained above, the proffered crossexamination about Moya’s U-Visa was unlikely to have any 

material impact on whether the jury believed his story, 

regardless of whether he was the sole witness. While the 

importance of Moya’s testimony to the prosecution’s case 

weighs in Burgos’s favor, it does not compel a finding of 

prejudice in the context of this case. 

4

 Although Moya was the only witness to testify directly to Burgos’s 

involvement, other aspects of his testimony were largely corroborated by 

Abarques. 
BURGOS V. MADDEN 13

Finally, Burgos points out that, in closing, the 

prosecution emphasized that the victims “are receiving no 

benefit from telling the[ir] story” and “get nothing in return 

for testifying,” which he contends supports a finding of 

prejudice. We do not condone the government’s conduct—

this statement, as applied to Moya, is patently false. 

However, it is not enough to meet Burgos’s burden under 

Brecht when, as discussed above, the chances that the 

precluded cross-examination would have undermined

Moya’s credibility are so low. On this record, we do not 

harbor “grave doubt” that the jury would have convicted 

Burgos had it known about Moya’s immigration status. 

Davenport, 142 S. Ct. at 1525.

CONCLUSION

For these reasons, the district court’s decision denying 

Burgos’s petition is AFFIRMED. 5

5 Burgos’s Motion to Expand the Record Pursuant to Federal Rule of 

Appellate Procedure 10(e)(2), or for Judicial Notice Pursuant to Federal 

Rule of Evidence 201(b)(2), Dkt. No. 28, is DENIED as moot. Burgos 

requests the court to consider the contents of the declaration attached to 

his U-Visa application. The parties dispute whether the cited procedural 

rules permit us to consider the document, given that it was not part of the 

record before the district court. However, our decision does not rely on 

the contents of Moya’s declaration, other than the description contained 

in the CCA’s statement of facts, which is presumed correct. See 28 

U.S.C. § 2254(e)(1). Therefore, the motion is moot.