FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAMIN FLOURNOY, Jr., 

Petitioner-Appellant, No. 11-55015

v. D.C. No.  3:08-cv-02298- LARRY SMALL, Warden; EDMUND G.

IEG-POR BROWN, Jr., Attorney General;

MATHEW CATE, Secretary CDCR, OPINION

Respondents-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

March 7, 2012—Pasadena, California

Filed May 30, 2012

Before: Jerome Farris, Richard R. Clifton, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Clifton

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COUNSEL

Mark D. Eibert, Half Moon Bay, California, for the petitionerappellant.

Steve Oetting (argued), Kamala Harris, Dane R. Gillette, Gary

W. Schons, Kevin Vienna, Office of the Attorney General,

San Diego, California, for the respondents-appellees.

OPINION

CLIFTON, Circuit Judge:

Benjamin Flournoy was convicted in a California court of

one count of forcible rape and one count of assault with intent

to commit rape. He appeals from the district court’s denial of

his petition for a writ of habeas corpus. Flournoy alleges two

violations of his constitutional rights.

First, he contends that the trial court permitted a forensic

analyst to testify based on the results of scientific tests performed and reports prepared by other analysts in violation of

his Sixth Amendment Confrontation Clause right. This claim

fails because there was no clearly established federal law,

based on decisions of the United States Supreme Court, that

held such testimony to violate the Confrontation Clause in cirFLOURNOY v. SMALL 5989
cumstances where the testifying witness participated in and

reviewed the crime lab’s work, even though she did not personally conduct all the testing herself.

Second, Flournoy alleges that he received ineffective assistance from his trial counsel, also in violation of the Sixth

Amendment, due to the attorney’s failure to make an objection based on the Confrontation Clause to the analyst’s testimony. We conclude that the failure to object did not represent

deficient performance by counsel and did not prejudice

Flournoy.

We affirm the district court’s denial of habeas relief. 

I. Background

Benjamin Flournoy was accused of raping L.M., an

acquaintance, when she spent the night at his apartment on

October 30, 2003. She visited a hospital the next day and

reported being raped. She was then transferred to another hospital, where the police took her clothes, she changed into a

hospital gown and new underwear, and a nurse performed a

sexual assault exam. L.M. did not consent to, so the nurse did

not perform, an internal examination with a speculum. 

After initially stating she had been raped by a stranger, a

couple of months later L.M. told the police that she had lied

about the circumstances of her rape and that she had actually

been raped by Flournoy. L.M. positively identified Flournoy

out of a six-man photo line-up and described possessions she

had seen in his apartment. When the police subsequently visited Flournoy, he denied knowing L.M. and voluntarily provided a DNA sample. 

Flournoy was charged with one count of forcible rape and

one count of assault with intent to commit rape. At trial, the

examining nurse testified that L.M. had displayed external

genital abrasions consistent with a friction injury from a penis

5990 FLOURNOY v. SMALL
coming into contact with the vaginal area. The nurse could

not determine whether the sexual contact was consensual or

nonconsensual.

Forensic analysts in the San Diego Police Department’s

crime laboratory analyzed the samples taken from L.M. and

Flournoy. Several different lab employees worked on the

case, only one of whom, Amy Rogala, testified at Flournoy’s

trial. Rogala testified that she had recovered male DNA from

swabs of L.M.’s breasts and that a state database identified

Flournoy’s DNA as a potential match. 

In addition to relating information from tests she had performed herself, Rogala testified as an expert based on the

work and conclusions of another analyst, Adam Dutra, who

was out of state and unavailable to testify. As part of the San

Diego crime laboratory protocol, Rogala performed a technical review of all of Dutra’s work for that month. After reviewing Dutra’s reports, Rogala stated that she was satisfied Dutra

had followed all proper protocols and procedures for the testing and calculations. She then testified that the sample from

L.M.’s breast and the sample voluntarily provided by

Flournoy matched at every tested marker location. Flournoy’s

counsel did not object to this testimony, and the portion of the

report demonstrating the marker matches was introduced into

evidence, also without objection. 

Flournoy’s attorney objected on hearsay grounds when

Rogala was asked about the likelihood of such a match with

a random person in the population. The answer required

Rogala to read Dutra’s report, and counsel argued that the

business records exception had not been established. Neither

counsel nor the trial judge mentioned the Confrontation

Clause. 

The trial court classified the statement as hearsay, saying it

was “being offered for its truth as a conclusion of this other

person’s work.” However, the court concluded that, as long as

FLOURNOY v. SMALL 5991
the State laid the proper foundation, the statement would be

admissible under California’s public records exception to the

hearsay rule. The prosecutor proceeded to lay the necessary

foundation and the court admitted Rogala’s testimony. Rogala

explained that all analysts in the lab used the same computer

program for population frequency calculations, and the program indicated the likelihood that a randomly selected

African-American male would match all the same DNA

markers as those present in L.M.’s breast swab was 1 in 41

quintillion. 

Rogala also testified based on Dutra’s test of additional

DNA recovered from an external genital swab. Though the

small sample size limited the methods available for DNA profiling, Dutra had conducted a less sensitive test involving only

the Y chromosome. This too resulted in a positive match with

Flournoy. Reviewing Dutra’s report on the stand, Rogala

stated that the Y chromosome profile of the external genital

swab sample matched only one Y chromosome profile in the

1,100 African-American Y chromosome profiles contained in

the database maintained by the lab. 

Finally, Rogala also testified that Dutra had noted two

sperm from the underwear L.M. changed into after the police

took her original clothes. Approximately 100 sperm are

required for DNA testing, so no such testing was done on the

sperm. 

Flournoy presented evidence that L.M. had removed all of

her clothes except her bra and underwear before getting into

bed with Flournoy the night of the rape, though there was a

sofa where she could have slept instead. A forensic nurse also

testified based on the reports of L.M.’s examination that the

abrasions L.M. suffered were consistent with consensual

intercourse. Defense counsel argued that Flournoy reasonably

believed L.M. had consented to intercourse. He did not argue

that Flournoy had not had sexual contact with L.M. 

5992 FLOURNOY v. SMALL
Flournoy was found guilty by the jury on both counts and

was sentenced to twenty-five years to life, plus five additional

years for each of three serious prior felonies for which he had

been convicted. The California Court of Appeal denied his

direct appeal in an unpublished decision. People v. Flournoy,

No. D048597, 2007 WL 1830806 (Cal. Ct. App. June 27,

2007). In relevant part, the court concluded that Rogala’s testimony regarding population frequencies was appropriate as

expert testimony, even though the opinion was based on the

calculations or tests of others. Id. at *7-8. Likewise, Dutra’s

DNA report was properly admitted under California’s business records exception to the hearsay rule, and Rogala’s testimony reported direct observations recorded in that report. Id.

at *8-9. The court held that Flournoy had waived any Confrontation Clause argument by failing to object on Confrontation Clause grounds at trial. Id. at *9. Alternatively, the court

held that the claim would not succeed on the merits, because

Rogala testified as an expert, and the underlying reports were

business records, not testimonial hearsay. Id. at *9-10.

Flournoy’s petitions to the California Supreme Court for

review and for a writ of habeas corpus were denied in 2007

and 2008, respectively. A petition to the United States

Supreme Court for a writ of certiorari was also denied.

Flournoy filed a petition for a writ of habeas corpus in federal district court. He raised five claims, including the claims

that are the subject of this appeal. The district court denied the

petition. Flournoy v. Small, No. 08cv2298-IEG(POR), 2010

WL 5021196 (S.D. Cal. Dec. 3, 2010). It issued a certificate

of appealability, under 28 U.S.C. § 2253(c), on two claims:

the Confrontation Clause claim and the claim of ineffective

assistance of counsel based on the failure to object properly

to Rogala’s testimony. Id. at *9. The court denied a certificate

of appealability on a separate claim of ineffective assistance,

based on the trial attorney’s failure to call an expert witness

to dispute the San Diego police crime lab reports. 

FLOURNOY v. SMALL 5993
II. Standard of Review

We review de novo a district court’s decision to deny a

petition for a writ of habeas corpus. Parker v. Small, 665 F.3d

1143, 1147 (9th Cir. 2011).

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs federal habeas review of state court decisions on the merits. 28 U.S.C. § 2254. It sets a high bar.

Under AEDPA, a federal court may grant habeas to a petitioner convicted in state court only if the state court’s decision

on the merits (1) was contrary to or an unreasonable application of clearly established federal law, or (2) was based on an

unreasonable determination of the facts in light of the evidence before the state court. 28 U.S.C. § 2254(d). “[A] state

prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770,

786-87 (2011). For the purposes of AEDPA review, clearly

established federal law is determined by Supreme Court holdings at the time the state court decision became final. See Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Greene v.

Fisher, ___ U.S. ___, 132 S. Ct. 38, 43-44 (2011).

III. Confrontation Clause

[1] The California court’s decision that the admission of

Rogala’s testimony based on the tests and reports of other

crime lab employees did not violate the Confrontation Clause

was not contrary to or an unreasonable application of clearly

established federal law.1 The Supreme Court’s decision in

1The district court held that Flournoy’s Confrontation Clause claim was

procedurally defaulted because the California Court of Appeal deemed

any challenge waived under the state’s contemporaneous objection rule. It

then proceeded to discuss the merits, as the California Court of Appeal

5994 FLOURNOY v. SMALL
Crawford v. Washington, 541 U.S. 36 (2004), had, by 2008,

established that testimonial out of court statements were

barred under the Confrontation Clause unless the witness was

unavailable and the defendant had a prior opportunity to

cross-examine the witness. Id. at 59. That decision did not,

however, delineate precisely what statements qualify as “testimonial,” nor did it place testimony like Rogala’s in that category. Id. at 51-52.

The nature of Rogala’s testimony differed substantially

from the testimony examined in Crawford. Although Rogala

had not performed the crime lab’s analysis by herself, she had

participated personally in the work that was done. She was

qualified and testified as an expert, forming her opinions primarily based on reports she had peer reviewed and which

were admissible as business records under the California Evidence Code. It was not unreasonable for the state court to

determine that the testimony in question was admissible after

Crawford. See Meras v. Sisto, ___ F. 3d ___, No. 09-15399,

2012 WL 1382857, at *3-4 (9th Cir. Apr. 23, 2012) (holding

that Crawford did not clearly establish forensic lab reports are

testimonial). 

[2] The Supreme Court subsequently held, in MelendezDiaz v. Massachusetts, 557 U.S. 305, 125 S. Ct. 2527, 2532

(2009), that a forensic laboratory report ranked as testimonial

for purposes of the Confrontation Clause, but that was after

the state court’s denial of Flournoy’s claim. Moreover,

Melendez-Diaz held only that a lab report could not be admithad done. While we ordinarily resolve the issue of procedural bar prior to

any consideration of the merits on habeas review, we are not required to

do so when a petition clearly fails on the merits. See Franklin v. Johnson,

290 F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are empowered to,

and in some cases should, reach the merits of habeas petitions if they are,

on their face and without regard to any facts that could be developed

below, clearly not meritorious despite an asserted procedural bar.”). 

FLOURNOY v. SMALL 5995
ted without a witness appearing to testify in person. Id.

Rogala appeared in person to testify at Flournoy’s trial.

Even today there does not appear to be clearly established

federal law that would make the admission of Rogala’s testimony unreasonable under the standard set under AEDPA.

Justice Sotomayor’s concurring opinion in a case decided last

year, Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct.

2705 (2011), reinforces our conclusion that Crawford did not

clearly establish a Confrontation Clause violation on these

facts. Justice Sotomayor provided the decisive fifth vote for

the majority in Bullcoming. In her separate opinion, she specifically identified Confrontation Clause questions that in her

view remained unanswered by the Court’s holdings in that

2011 case, let alone by Crawford. These unresolved areas

included the treatment of experts testifying to their opinions

based on reports not admitted into evidence, as well as the

degree of proximity the testifying witness must have to the

scientific test. See id. at 2722 (“We would face a different

question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements

if the testimonial statements were not themselves admitted as

evidence.”); id. (“[T]his is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue.

. . . We need not address what degree of involvement is sufficient . . . .”). Both of these open issues were relevant to

Flournoy’s case. If those areas remained unsolved as of 2011,

it is impossible to conclude that the California court’s conclusions in this case were contrary to clearly established federal

law at the time.

IV. Ineffective Assistance of Counsel

At trial, Flournoy’s attorney objected to parts of Rogala’s

testimony as hearsay but did not state an objection based on

the Confrontation Clause. Flournoy now argues that the fail5996 FLOURNOY v. SMALL
ure to object on Confrontation Clause grounds represented

ineffective assistance of counsel.

To establish ineffective assistance of counsel, a defendant

must demonstrate both that counsel’s performance was deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Deficient performance prejudices a defendant if “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. To be eligible

for federal habeas relief under AEDPA, a defendant claiming

ineffective assistance of counsel must demonstrate that “the

state court’s application of the Strickland standard was unreasonable.” Harrington, 131 S. Ct. at 785. Flournoy has not met

this standard. 

[3] First, given the state of California and United States

Supreme Court Confrontation Clause jurisprudence at the

time, there was not a reasonable probability that a Confrontation Clause objection would have been sustained by the trial

court or overturned on state court appeal. California law

weighed in favor of admitting the testimony and sustaining

that admission on appeal. See People v. Geier, 161 P.3d 104,

140 (Cal. 2007) (holding that a “DNA report was not testimonial for the purposes of Crawford”). The state court of appeal

explicitly rejected the argument that admission of Rogala’s

testimony violated his rights under the Confrontation Clause.

And, as discussed above, Crawford did not dictate a conclusion that Flournoy’s Confrontation Clause rights were violated. The failure to make an objection that would have been

overruled was not deficient performance.

[4] Second, even if the objection had been sustained by the

trial court, there was not a reasonable probability that the

result of the trial would have been different. Flournoy’s

defense was based on the argument that the sexual activity

FLOURNOY v. SMALL 5997
with L.M. was consensual or that Flournoy reasonably

believed that it was consensual. The identification of

Flournoy as the person who had sexual contact with L.M. —

the point made by the DNA identification evidence — was

not disputed at trial. Flournoy argues that, had the evidence in

question been excluded, his counsel might have pursued a

defense based on lack of sexual penetration, rather than belief

of consent. This argument is unpersuasive. Even the record

with the contested evidence left room for a lack of penetration

defense, which counsel chose not to make. A lack of penetration defense would not have been particularly strengthened if

Rogala’s testimony regarding the sperm Dutra found had been

excluded. Counsel’s decision to focus the defense on consent

was a strategic choice that Flournoy did not directly challenge

and that we cannot second-guess here.

In addition to the issues covered by the certificate of

appealability, Flournoy also raises an uncertified claim of

ineffective assistance based on the failure of his trial counsel

to offer evidence from a defense expert, Dr. Slaughter, to

respond to the crime lab reports and testimony. We decline to

issue a certificate of appealability regarding that issue. Not

calling Dr. Slaughter was a trial tactic — defense counsel

focused on consent, not penetration or identity — so Flournoy

cannot demonstrate deficient performance by counsel. 

AFFIRMED.

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