NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TERRANCE L. VARNER ,

Petitioner

- Appellant ,

v. DAVE DAVEY , Warden,

Respondent

- Appellee

. No. 16

- 15 771
D.C. No. 3:14

- cv - 02218

- EMC

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Argued and Submitted March 14 , 2018 San Francisco , California Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF, * * Senior District Judge. Petitioner Terrance L. Varner (“ V arner ”) ap peals from the district court’s denial of his petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

* * The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

MAR 27 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

under 2 8 U.S.C. § 2253. Reviewing the district court’ s denial de novo , see Lopez v. Thompson , 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc) , w e affirm. Varner was convicted by a California state court jury of second degree murder and felon in possession of a firearm. The jury also approved an enhancement that provides for an additional term of 25 years to life in prison if, in the commission of a murder, a defendant “personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury

. . . or death.” Cal. Penal Code § 12022.53(d). Varner alleges numerous constitutional deficiencies in the trial that resulted in these verdicts

. Under AEDPA ’s highly deferential standard of review , Varner can obtain relief on claims that have been “adjudicated on the merits in State court proceedings” only if the last reasoned opinion of the state courts resulted in a decision that either was (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 c ourt proceeding.” 28 U.S.C. § 2254(d); see also Deck v. Jenkins , 814 F.3d 954, 977 (9th Cir. 2014). Moreover, even where there was error, Varner is entitled to relief only if he can establish that such error resulted in actual prejudice under Brecht v. Abr ahamson , 507 U.S. 619, 637 (1993). “Under this test, relief is proper only if the federal court has ‘grave doubt3

about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.’” Davis v. Ayal a , 135 S. Ct. 2187,
2197

- 98 (2015) (quoting O’Neal v. McAninch , 513 U.S. 432, 436 (1995)). This highly deferential standard subsumes the “more liberal AEDPA . . . standard which requires only that the state court’s harmless

- beyond

- a - reasonable

- doubt determination [under Chap man v. California , 386 U.S. 18 (1967)] be unreasonable.” Fry v. Pl iler , 551 U.S. 112, 120 (2007). Therefore, if the state court made a harm lessness determination, it is a necessary but not sufficient condition for r elief that “the [state court’s] harmlessness determination itself was unreasonable.” Id. at 119. A state court’s harmlessness determination is unreasonable only if it is “so lacking in justification that there w as an error well understood and comprehended in existin g law beyond any possibility fo r fairminded disagreement.” Ayala , 135 S. Ct. at 2199 (quoting Harrington v. Richter , 562 U.S. 86, 103 (2011))

. Varner first challenges on due process grounds the jury instruction s on the special enhancement under California Penal Code § 12202.53(d) and on aiding and abetting. “[A] jury instruction violates due process if it fails to give effect to th[e] requirement ” that the state prove every element of a criminal offense beyond a reasonable doubt. Middleton v. McNeil , 541 U.S. 433, 437 (2004). However, “ n ot every . . . deficiency in a jury instruction rises to the level of a due process4

violation ,” id. , and “ [a] n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of t he law, ” Henderson v. Kibbe , 431 U.S. 145, 155 (1977).
Varner argues that the jury instructions on California Penal Code § 12202.53(d) v iolated his ri ght to due process because they d id not provide a definition of “proximate cause .” 1 Although this omission may have been erroneous under state law, it did not violate “clearly established federal law.” To the contrary, the Supreme Court has found no due process violation where the challenged jury instruction, like the instruction here, “parroted the la nguage of the statute.” Waddington v. Sarausad , 555 U.S. 179, 190

- 96 (2009). Moreover, even if there

were a federal error, we see no reason to doubt the state court’s conclusion that any

error was harmless because , a lay juror’s conception of proximate cau se is likely no broader than that conveyed by the omitted instruction

. Varner’ s argu ment regarding the trial court’s failure to instruct the jury on concurrent causation is unavailing as well

. Under California law, an act is a

concur rent cause of death if it is a “substantial factor” contributing to the victim's death. People v. Bland , 48 P.3d 1107, 1122 (Cal. 2002). Here, th e coroner testified that Ogden’s death was caus ed by multiple gunshot wounds. Based on that

1 The jury was given the following instruction : “If you find the defendant guilty, you must determine whether the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to [the victim] .”5

testimony, the state court reasonably conc luded that the trial court’ s failure to instruct the jury on concurrent causation was harmless

. With respect to the instructions on aiding and abetting, it is settled law in California that an aider and abettor’s mental state must be at least that requ ired of the direct perpetrator. People v. McCoy , 25 Cal. 4th 1111, 1118 (2001). Here, however , the aiding

- and

- abetting instruction permitted the jury to find Varner guilty of aiding and abetting second degree murder even if he acted with a lesser

mens rea than that required of the direct perpetrator of second degree murder

. Varner argues that, as a result, the jury could have found that he “acted with a less culpable mental state than the implied malice required for second

- degree murder.” The state court reason ably held that any such error was harmless. The jury found that Varner personally and intentionally discharged a firearm, and no evidence suggested that any of the shots fired were not aimed at the victim. We therefore see little chance that the jury found that Varner acted with anything less than implied malice. 2

2 Varner erroneously argues that the state court’s harmlessn ess determinations warrant no deference because the court failed to evaluate harmlessness “in l ight of the record as a whole ,” instead viewing the evidence in the light most favorable to the prosecution. We disagree. First , in finding the error in the aidi ng and abetting instruction harmless, the district court relied exclusively on the jury’s finding on the enhancement , and not on any analysis of the record

. Second , regarding the enhancement instruction, the mere fact that the state court concluded that the jury could have found that Varner “proximately caused” the victim’s death , notwithstanding some evidence to the contrary, does not support an inference that6

Varner also raises claims under the Constitution’s Confrontation Clause. The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. “A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross

- examination.” Melendez

- Diaz v. Massachusetts , 557 U.S. 305, 309 (2009). The state court found that Varner failed to est ablish any Confrontation Clause violation

. First , Varner objects to the admission of the preliminary hearing testimony of a witness named DeAngelo Hudson, which the trial court admitted after deeming Hudson an “unavailable witness” on the grounds that Hud son had properly invoked his Fifth Amendment privilege against self

- incrimination and refused to testify , even after the court raised the prospect of criminal contempt

. A pplying the highly deferential standard set forth in Brecht , 507 U.S. 619, we conclude that, even i f erroneously admitted, Hudson’s preliminary hearing testimony did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Davis v. Ayala , 135 S. Ct. 2187, 2198

- 99 (2015) (quoting O’Neal v. McAninch , 513 U

. S. 432, 436 (1995)). As Varner ’ s counsel

the state court failed to review the entire r ecord

. This is especially true since the state court extensively recounted all the testimony offered at the trial in its opinion

.7

correctly acknowledged on appeal, Hudson’ s pre liminary hearing testimony was

“ cumulative, ” and “ the prosecution did not need [Hudson ’ s] testimony to prove its

case .” Hudson ’ s testimony that he witnessed Varner shoo t at the victim was cumulative because three other eyewitnesses admitted in earlier statements to seeing Varner shoot at Ogden as well. In light of this testimony, we conclude tha t any error in admitting Hudson’ s preliminary hearing testimony was harmless

. Second , Varner argues that the trial court erred by admitting the p retrial statement of a witness named Carl Anthony

. Th e state court reasonably concluded that the admission of this statement did not deprive Varner of his rights under the Confrontation Clause because Anthony was a vailable for cross

- examination. “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross

examination, not cross

- examination that is effective in whatever way, and to whatever extent, the defense might wish .’” United States v. Owens , 484 U.S. 554, 559 (1988) (quoting Kentucky v. Stincer , 482 U.S. 730, 739 (1987)). It was therefore not an unreasonable application of Supreme Court precedent for the state court to conclude that a witness is not rendered unavail able for cross

- examination simply by feigning memory loss

. Felix v. Mayle , 379 F.3d 612, 617

- 18 (9th Cir. 2004) (citing Owens , 484 U.S. at 564), overruled on other grounds by Mayle v. Felix , 545 U.S. 644 (2005).
Varner next contends that the prosecutor misstated the law of voluntary8

manslaughter during her closing rebuttal argument and that this statement amounted to prosecutorial misconduct in violation of his due process rights. Specifically, the prosecutor described as the “standard example” of a prov ocation that would qualify for the heat

- of

- passion defense an example that was, at best, extreme and, quite possibly, erroneous under California law. See People v. Najera , 41 Cal. Rptr. 3d 244, 251 (Ct . App. 2006) . The state court held in this case, howeve r, that the prosecutor’s example neither misrepres ented the heat

- of

- passion defense nor distort ed the given jury instructions. “[T]he touchstone of due process analysis in cases of alleged prosecutorial miscondu ct is the fairness of the trial .” Smith v. Ph illips , 455 U.S. 209, 219 (1982). The context in which the prosecutor’s comment was made in this case demonstrates that the comment did not render the trial fundamentally unfair , even if it was legally incorrect

. As an initial mat ter, the Supreme Court of the United States has explained that a “prosecutor’s comments must be evaluated in light of the defense argument that preceded it,” and accordingly found no due process violation where , like here, “the objectionable content was in vited by or was responsive to the opening summation of the defense.” Darden v. Wainwright , 477 U.S. 168, 179 , 182 (1986). Furthermore , “a rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely9

viewed as the statements of advocates,” whereas the latter “are viewed as definitive and binding statements of the law.” Boyde v. California , 494 U.S. 370, 384 (1990)

. Inde ed , t he trial court instructed the jury on voluntary manslaughter , and those instructions are unchallenged. The court al so instructed the jury that it mu st accept the law as stated by the court and that i f anything concerning the law said by attorneys in t heir arguments conflicted with the court’s instructions, the jury must follow the court’s instructions. Therefore, the state court reasonably concluded that the prosecutor’s example of provocation did not violate Varner’s due process rights

. Finally, Varner raises three ineffective assistance of counsel claims. The Sixth Amendment’s right to counsel guarantees effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686 (1984). Counsel’s conduct is ineffective if it so undermin ed the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a petitioner must establish two things: (1) counsel’s performance was deficient and fell below an “objective standard of reasonableness” unde r prevailing professional norms, i d. at 687

- 88; and (2) defendant was prejudiced by counsel’s deficient performance, i.e. , that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proce eding would have been different, ” i d. at 694. A reasonable10

probability is a probability sufficient to undermine confidence in the outcome. Id

. Here, the state court held that Varner had not s hown p rejudice as to any of his three ineffective assistance of counsel claims. We see nothing unreasonable about that determination.
First , Varner argues that trial counsel rendered ineffective assistance of counsel by withdrawing a request for a caution a ry accomplice jury instruction. This instruction would have advised the jury , among other things, that the jury could not find Varner guilty based on the testimony of an accomplice unless the testimony was corroborated by other evidence and that the jury should view an accomplice’s testimony tending to incriminate a defendant with caution. See Cal. Jury Instructions 3.11; Cal. Jury Instructions 3.16. Trial counsel initially requested that the court instruct the jury about accomplice testimony but then withdrew the request during the jury instruction conference. Counsel had good reason to withdraw the request : (i) it was questionabl e whether the relevant witness even was an accomplice ; (ii) the requirement that the accomplice’s testimony be corrob orated, which requires only “slight” corroborating evidence and not on ever y detail, was met in this case ; (iii) the fact that the relevant witness potentially stood to gain by testifying against petitioners was made known to the jury by virtue of the fact that he w as in jail awaiting sentencing in an unrelated case , such that t here was less need for instruction on11

viewing his testimony with caution ; and (iv) the witness testified to some things

t hat were helpful to the defense

. Moreover, “ Strickland specifically commands that a court ‘must indulge [the] strong presumption’ that counsel ‘made all significant decisions in the exercise of reasonable professional judgment. ’ ” Cullen v. Pinholster , 563 U.S. 170, 196 (2011) (alteration in original) (quoting Strickland , 466 U.S. at 690) . Petitioners show no reason to disregard that strong presumption here. Cf. Knowles v. Mirzayance , 556 U.S. 111, 122

- 24 (2009) (abandoning a defense that has “almost no chance of success” is reasonable, even if there is “nothing to lose” by preserving the defense). Second , Varner argues that trial counsel provided ineffective assistance in failing to timely object to the prosecutor’s alleged misstat ement of the law regarding heat

- of

- passion and voluntary manslaughter. As discusse d above, the state court was justified in finding that the prosecutor’s argument did not make a difference at trial. It was therefore not an unreasonable application of Strickland to conclude that this ineffective

- assistance claim failed for lack of prejud ice. Third , and finally, Varner alleges that appellate counsel provided ineffective assistance because they failed to present in their appellate brief the foregoing claims for ineffective assistance of counsel. To determine whether appellate counsel’s fail ure to raise a claim of ineffective assistance of trial counsel was12

objectively unreasonable and prejudicial, the district court must first assess the merits of the underlying claim that trial counsel provided constitutionally deficient performance. Moorma nn v. Ryan , 628 F.3d 1102, 1106

- 07 (9th Cir. 2010). If trial counsel’s performance was not objectively unreasonable or did not prejudice the petitioner, then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, and the petitioner was not prejudiced by appellate counsel’s omission. Id. As explained above, the ineffective assistance of trial counsel claims d o not warrant habeas relief . Appellate counsel therefore was not ineffective in not raising these claims as a basis for reversal on appeal, and the California Supreme Court’s rejection of the ineffective assistance of appellate counsel claims of petitioner s was not contrary to or an unreasonable application of clearly established precedent.
AFFIRMED.