Weissman v. Clark

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NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 23 2025
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVEN IRVING WEISSMAN,                         No. 23-4407
                                                D.C. No.
             Petitioner - Appellant,            3:22-cv-04005-WHO
 v.
                                                MEMORANDUM*
KEN CLARK,

             Respondent - Appellee.

                  Appeal from the United States District Court
                       for the Northern District of California
                 William Horsley Orrick, District Judge, Presiding

                      Argued and Submitted February 6, 2025
                            San Francisco, California

Before: FORREST and SANCHEZ, Circuit Judges, and EZRA, District Judge.**

      Petitioner Steven Weissman, a California state prisoner, appeals the district

court’s denial of his
28 U.S.C. § 2254
habeas corpus petition. Because the parties

are familiar with the facts, we do not recount them here.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      We review the district court’s denial of a § 2254 petition de novo. Bolin v.

Davis,
13 F.4th 797, 804
(9th Cir. 2021). However, under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), we defer to the last state court’s

reasoned decision on any claim that was adjudicated on the merits unless that

decision is “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”

or “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).

      When reviewing claims subject to AEDPA deference, relief may be granted

only if the state court’s determination was objectively unreasonable. Davis v. Ayala,
576 U.S. 257
, 268–69 (2015).         To assess whether a finding is objectively

unreasonable, we first “conduct an independent review of the record to determine

what arguments or theories could have supported the state court’s decision.” Bemore

v. Chappell,
788 F.3d 1151, 1161
(9th Cir. 2015) (alterations adopted) (quoting

Harrington v. Richter,
562 U.S. 86, 102
(2011)). We then “ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a decision of the Supreme Court.”
Id.
(alterations adopted)

(quoting Richter,
562 U.S. at 102
). “‘[S]o long as fairminded jurists could disagree

on the correctness of the state court’s decision,’ AEDPA precludes federal habeas

relief.” Kipp v. Davis,
971 F.3d 939, 949
(9th Cir. 2020) (quoting Richter,
562 U.S.



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23-4407
at 101). A determination of a factual issue made by a state court shall be presumed

to be correct.
28 U.S.C. § 2254
(e)(1). Petitioner must rebut the presumption of

correctness with clear and convincing evidence.
Id.
I.   Napue Violation

      A Napue violation is the knowing presentation of false testimony by the

prosecution. Napue v. Illinois,
360 U.S. 264, 269
(1959). The first two elements of

a Napue claim require “that (1) the testimony (or evidence) was actually false, [and]

(2) the prosecution knew or should have known that the testimony was actually

false.” Hayes v. Brown,
399 F.3d 972, 984
(9th Cir. 2005) (en banc) (citation

omitted). Once the first two elements are established, a new trial is warranted if the

Napue violation is material, which occurs if there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.          Glossip v.

Oklahoma,
145 S. Ct. 612
, 626–27 (2025). In short, this materiality standard

requires “the beneficiary of [the] constitutional error to prove beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.”
Id. at

627
(citation omitted) (alteration in original).

      Here, the state court determined that although the prosecution violated Napue,

the prosecutor’s failure to correct R.A.’s false testimony was harmless with respect

to counts 5, 7, 9, 12, and 13. The state court appropriately dismissed the other counts

that could have been affected by R.A.’s false testimony, which either directly



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involved R.A. or were based on similar charges of lewd acts. However, testimony

of the victim-witnesses affected by counts 5, 7, 9, 12, and 13 (J.K., K.C., and T.B.)

was overtly sexual in nature and unrelated to Petitioner’s conduct toward R.A. A

fairminded jurist could agree that proof of Petitioner’s sexual intent on the counts

involving K.C., T.B., and J.K. did not depend on any inference derived from R.A.’s

false testimony that he had reported an incident of inappropriate contact with

Petitioner before testifying about the incident at trial. Accordingly, the state court

reasonably determined that the jury’s verdict on counts 5, 7, 9, 12, and 13 was not

attributable to R.A.’s false testimony.

II.   Juror-Debrief Challenge

      When faced with allegations of improper contact between a sitting juror and

an outside party, we apply a settled two-step framework. Godoy v. Spearman,
861

F.3d 956, 959
(9th Cir. 2017) (en banc). “At step one, [we] ask[] whether the contact

was ‘possibly prejudicial,’ meaning it had a ‘tendency’ to be ‘injurious to the

defendant.’”
Id.
(quoting Mattox v. United States
146 U.S. 140, 150
(1892)). “If so,

the contact is ‘deemed presumptively prejudicial’ and [we] proceed[] to step two,

where the ‘burden rests heavily upon the [state] to establish’ the contact was, in fact,

‘harmless.’”
Id.
(quoting Remmer v. United States,
347 U.S. 227, 229
(1954)).

“Harmlessness in this context means ‘that there is no reasonable possibility that the

communication . . . influence[d] the verdict.’”
Id.
at 968 (quoting Caliendo v.



                                          4                                   23-4407
Warden of Cal. Men’s Colony,
365 F.3d 691, 697
(9th Cir. 2004)) (alterations in

original). “[T]he state must rebut the presumption by pointing to some evidence

contrary to the evidence that established it.”
Id.
Existing Supreme Court precedent involves communication with a sitting

juror, not an excused juror. But even if there was clearly established Supreme Court

authority regarding a juror-debrief challenge for an excused juror, we conclude the

state court was not unreasonable in holding there was no prejudice to Petitioner. The

prosecutor communicated with an excused juror––who no longer had contact with

the sitting jury after being excused––prior to the conclusion of the trial. The state

court credited the prosecutor’s testimony that his closing argument referencing a trial

witness was not based on information the prosecutor might have learned from

discussing the case with the excused juror, but was instead based on a question

submitted to the court by a sitting juror. The state court reasonably concluded that

the prosecutor overcame the rebuttable presumption of prejudice. See Caliendo,
365

F.3d at 696
.

III.   Prosecutorial Misconduct

       A prosecutor’s actions constitute misconduct if they “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright,
477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo,
416 U.S.

637, 643
(1974)). On habeas review, constitutional errors of the “trial type” warrant



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relief only if they “had substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619
, 637–38 (1993) (internal

quotation marks omitted). Moreover, we “must not only weigh the impact of the

prosecutor’s remarks, but must also take into account defense counsel’s opening

salvo.” United States v. Young,
470 U.S. 1, 12
(1985).

      The state court concluded that there was no prosecutorial misconduct or

ineffective assistance of defense counsel for failing to object to closing arguments

by the prosecutor that emphasized defendant’s lack of “heterosexual relationships.”

The state court reasoned, based on the evidence at trial, that the prosecutor was not

referencing Petitioner’s sexual orientation but rather his lack of any intimate adult

relationships. At trial, the evidence established that Petitioner had lied about being

married to a woman, had unsuccessfully attempted a sexual relationship with his

female housekeeper, and had once asked his neighbor to pretend to be his girlfriend

for a family gathering.

      It “is not enough that the prosecutors’ remarks were undesirable or even

universally condemned.” Darden,
477 U.S. at 181
. Instead, “[t]he relevant question

is whether the prosecutors’ comments ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’”
Id.
(quoting Donnelly,
416

U.S. 643
). Based on the record, the state court reasonably determined that the

prosecutor’s argument was not discriminatory or improper. Moreover, “absent



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egregious misstatements, the failure to object during closing argument and opening

statement is within the ‘wide range’ of permissible professional legal conduct.”

Cunningham v. Wong,
704 F.3d 1143, 1159
(9th Cir. 2013) (internal quotation marks

and citation omitted).    Therefore, we also affirm that there was no deficient

performance of counsel for failure to object to the prosecutor’s closing statements.

IV.   Vouching

      “Vouching consists of placing the prestige of the government behind a witness

through personal assurances of the witness’s veracity, or suggesting that information

not presented to the jury supports the witness’s testimony.” United States v.

Necoechea,
986 F.2d 1273, 1276
(9th Cir. 1993); accord Berger v. United States,
295 U.S. 78
, 85–88 (1935); Young, 470 U.S. at 7–13. Here, the prosecutor’s

comments came during rebuttal closing statements and were in direct response to

defense counsel’s arguments about him. See Necoechea,
986 F.2d at 1278
. In

addition, the jury was instructed that they should base their decision only upon the

evidence and the court’s instructions on the law, and the court assumed they

followed those instructions.     The prosecutor did not guarantee the witnesses’

veracity with his own personal beliefs or opine on their credibility. Thus, the state

court’s holding that the prosecutor did not vouch for evidence and that counsel was

not ineffective in failing to object is reasonable and not contrary to federal law.




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V.    Brady Violation

      To prevail on a Brady claim, Petitioner must prove that the evidence at issue

is favorable to him, it was suppressed by the prosecution, and prejudice ensued.

Strickler v. Greene,
527 U.S. 263
, 281–82 (1999); see also Brady v. Maryland,
373

U.S. 83, 87
(1963). To establish prejudice, a defendant must demonstrate that “there

is a reasonable probability that the result of the trial would have been different if the

suppressed [evidence] had been disclosed to the defense.” Strickler,
527 U.S. at 289
(internal quotation marks omitted). “A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” United States v. Bagley,
473

U.S. 667, 682
(1985). “One does not show a Brady violation by demonstrating that

some of the inculpatory evidence should have been excluded, but by showing that

the favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Kyles v. Whitley,
514 U.S.

419, 435
(1995).

      It is not an unreasonable application of clearly established federal law to hold

that there was no prejudicial constitutional error where the prosecution failed to

disclose gifts to witness T.B. The state court identified all the other impeachment

evidence that Petitioner could—and did—use to contest T.B.’s accusations against

him and found that the disclosure of the gifts would not have added anything to the

cumulative impact of the impeachment evidence. See Turner v. United States, 582



                                          8                                    23-
4407
U.S. 313
, 327 (2017) (“With respect to the undisclosed impeachment evidence, the

record shows that it was largely cumulative of impeachment evidence petitioners

already had and used at trial.”). The state court also found that Petitioner did not

establish a selfish motive given that T.B. did not know he would receive a

refurbished laptop and gift card before he testified, and T.B. did not find out about

the gifts until after he finished testifying. Those factual findings are presumed

correct and have not been rebutted by Petitioner with clear and convincing evidence.

See
28 U.S.C. § 2254
(e)(1). Moreover, the state court found T.B.’s trial testimony

was consistent with his prior statements, which were made before any gifts were

given to him. Thus, the state court’s conclusions were not so lacking in justification

beyond any possibility for fairminded disagreement. Richter,
562 U.S. at 103
.

VI.   Ineffective Assistance of Counsel

      For ineffective assistance of counsel claims, Petitioner must show that

counsel’s performance “fell below an objective standard of reasonableness,” and

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland v. Washington,
466

U.S. 668, 688, 694
(1984). “This analysis is ‘doubly deferential’ when, as here, a

state court has decided that counsel performed adequately.” Dunn v. Reeves,
594

U.S. 731, 739
(2021) (citation omitted).




                                        9                                   23-4407
       “Strategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”

Strickland, 466 U.S. at 690–91. Given that defense counsel had ample forms of

impeachment evidence specifically targeting T.B.’s credibility, such as his history

of lying and hallucinations, it was not an unreasonable strategic choice for counsel

to forgo investigation into the juvenile theft charge. Accordingly, it was not

unreasonable under or contrary to federal law for the state court to conclude that

Petitioner’s trial counsel did not provide him with ineffective assistance when he

chose not to further investigate T.B.’s theft charge.

VII.   Multiple-Victim Sentencing Enhancement

       Structural errors are “a very limited class of errors that trigger automatic

reversal because they undermine the fairness of a criminal proceeding as a whole.”

United States v. Davila,
569 U.S. 597, 611
(2013) (internal quotation marks and

citation omitted). Structural errors include the “denial of counsel of choice, denial

of self-representation, denial of a public trial, and failure to convey to a jury that

guilt must be proved beyond a reasonable doubt.”
Id.
By contrast, discrete defects—

such as the omission of a single element from jury instructions—are not structural

because they do not “necessarily render a criminal trial fundamentally unfair or an



                                        10                                  23-4407
 unreliable vehicle for determining guilt or innocence.” Neder v. United States,
527

 U.S. 1, 9
(1999). And “[f]ailure to submit a sentencing factor to the jury, like failure

 to submit an element to the jury, is not structural error.” Washington v. Recuenco,
548 U.S. 212, 222
(2006). A reviewing court should ask whether any flaw in the

 jury instructions “had substantial and injurious effect or influence in determining the

 jury’s verdict.” Hedgpeth v. Pulido,
555 U.S. 57, 58
(2008) (citation omitted).

        Here, the state court found that the trial court’s failure to instruct the jury on

 the elements of the multiple-victim sentencing enhancement was harmless error.

 The state court’s holding was not contrary to Sullivan v. Louisiana,
508 U.S. 275,

 281
(1993), because the trial court did not give an erroneous reasonable doubt

 instruction. Nor was the holding contrary to Neder, which emphasized that most

 instructional errors are not structural. 527 U.S. at 9. The state court reasonably

 determined that the jury found beyond a reasonable doubt that Petitioner violated

 section 288(a) of the California Penal Code against multiple victims and did so by

 making the precise findings on the verdict form that CALCRIM 3181 would have

 instructed them to do.

VIII.   Cumulative Prejudicial Constitutional Error

        “The Supreme Court has clearly established that the combined effect of

 multiple trial court errors violates due process whe[n] it renders the resulting

 criminal trial fundamentally unfair.” Parle v. Runnels,
505 F.3d 922, 927
(9th Cir.



                                          11                                    23-4407
2007) (citing Chambers v. Mississippi,
410 U.S. 284, 298
, 302–03 (1973)). “We

have granted habeas relief under the cumulative effects doctrine when there is a

‘unique symmetry’ of otherwise harmless errors, such that they amplify each other

in relation to a key contested issue in the case.” Ybarra v. McDaniel,
656 F.3d 984,

1001
(9th Cir. 2011) (quoting Parle,
505 F.3d at 933
).

      The state court rejected the cumulative prejudice argument because it found

no significant prejudicial errors except for the Napue error that required the reversal

of nine counts. The case against Petitioner hinged on the testimony of several

children who provided similar accounts of the nature of their relationships with

Petitioner, the corroborating evidence from those children telling their parents about

Petitioner’s attacks, and Petitioner’s own admission that he had masturbated in bed

with one of the children. Despite the constitutional errors, Petitioner introduced

exculpatory evidence, his accusers were thoroughly examined and impeached,

prosecutorial errors were subject to evidentiary hearings, and the instructional error

was minor. It was thus reasonable and not contrary to federal law for the state court

to conclude that no cumulative prejudicial error occurred.

      AFFIRMED.




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