Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding D.C. No. CV-07-02705-ODW-RZ.
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted February 2, 2010 -- Pasadena, California
Before: Betty B. Fletcher, Harry Pregerson, and Susan P. Graber, Circuit Judges.
Petitioner Luis Phillip Ponce was convicted in California state court of burglary and murder. In this appeal, he challenges the district court's denial of his habeas petition, arguing that the admission of certain testimony violated his rights under the Confrontation Clause. The California Court of Appeal affirmed the convictions, reasoning that the testimony fell within the "forfeiture by wrongdoing" exception to a defendant's right to confront the witnesses against him. The Supreme Court later ruled, in Giles v. California, 128 S.Ct. 2678, 2693 (2008), that the forfeiture exception applies only if a defendant specifically intended to prevent the witness from testifying. Thus, Giles would have controlled Petition-er's case had Giles been decided while his convictions were on direct appeal. However, in holding that forfeiture requires proof of a defendant's intent to prevent testimony, Giles established a new rule that does not apply retroactively. At the time of Petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law the California appellate courts to rule that the forfeiture n did not require proof of an intent to make the witness unavailable. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In September 1998, Petitioner broke up with his girlfriend, Eva Gooch, and got back together with a former girlfriend, Christina Valencia. After Petitioner dumped Gooch, she threatened to tell the police about Petitioner's drug-dealing activities. She also threatened to report Valencia to the welfare authorities for living with a drug dealer, told Valencia that Petitioner had declared that he did not love Valencia, and told Valencia that Gooch had a video of herself and Petitioner having sex. Gooch's threats and taunts angered Petitioner.
At about 2 a.m. on December 6, 1998, Petitioner and a companion, Alex Carballo, encountered a former friend of Petitioner's at a gas station. Petitioner told his former friend that he had to "go kill some bitch." Gooch was bartending during the early morning hours of December 6, but her employer sent her home at about 2:30 a.m. because she complained of feeling ill. The following morning, Gooch failed to show up at her sister's house, as planned, to bake cookies with her niece. Gooch's sister called her repeatedly, but Gooch did not answer her phone.
Later that day, Petitioner and Carballo were in a car accident. A bystander who witnessed the accident testified that Petitioner had an injured hand wrapped in a white cloth covered in stains that looked like blood stains. The bystander asked Petitioner if he had hurt himself in the accident; Petitioner responded that he had injured his hand before the car accident. The bystander also noticed that Petitioner was wearing jeans that bore stains similar to those on the bandage on his hand.
On December 9, 1998, Gooch's body was discovered in her apartment. She had been stabbed approximately 30 times, and a broken knife blade was embedded in her throat. An uncapped bleach bottle lay next to her body. DNA testing of blood found on the bleach bottle and on the kitchen counter of the apartment showed that the blood contained a mixture of Gooch's and Petitioner's blood. DNA testing also showed that saliva on two cigarette butts in the apartment had come from Carballo.
The State of California tried Petitioner for first-degree burglary and first-degree murder. His first trial resulted in a mis-trial on the burglary count, and the California Court of Appeal reversed his murder conviction because of an erroneous jury instruction. At Petitioner's second trial, the prosecution introduced the evidence summarized above, and the court also permitted two witnesses to testify regarding Gooch's statements to them.*fn1
Vikki Gibson, a private security guard in Gooch's apartment building, testified that she went to Gooch's apartment about two weeks before the murder because she heard loud banging noises. Gooch came to the door with a hammer in her hand and explained to Gibson that she was nailing boards over her balcony window to keep "Louie" out.
In addition, Bruce Richards, the apartment leasing agent, testified that Gooch called him on December 5 and asked him to arrange for the security guards to patrol her floor more frequently. Richards testified that Gooch said that she had received a phone call from Petitioner and that Petitioner had threatened, "I'm gonna kill you, bitch."
The jury convicted Petitioner of both burglary and murder. The court sentenced Petitioner to 25 years to life with the possibility of parole for the murder and four years for burglary. The California Court of Appeal affirmed Petitioner's convictions on January 25, 2006. The court held that the testimony by Gibson and Richards regarding Gooch's fears was proper because Petitioner had forfeited his Confrontation Clause rights by killing Gooch. The court also held that admission of the testimony, if erroneous, was harmless error because there was substantial evidence against Petitioner aside from the challenged testimony. The California Supreme Court summarily denied Petitioner's petition for review on April 12, 2006.
Petitioner filed a petition in federal court for a writ of habeas corpus, arguing, among other things, that the admission of the testimony regarding Gooch's statements violated his rights under the Confrontation Clause. On June 18, 2008, the district court denied the petition, concluding that the state court's decision to affirm Petitioner's conviction was neither contrary to, nor an unreasonable application of, clearly established federal law. The district court also ruled that the disputed statements were not testimonial, an issue not reached by the California Court of Appeal. On June 25, 2008, the Supreme Court decided Giles, 128 S.Ct. at 2688, in which the Court held that the forfeiture by wrongdoing exception applies only to those cases in which a defendant secured the ...