Benjamin Flournoy, Jr. v. Larry Small, et al
FILED OPINION (JEROME FARRIS, RICHARD R. CLIFTON and SANDRA S. IKUTA) AFFIRMED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN FLOURNOY, Jr.,
LARRY SMALL, Warden; EDMUND G.
BROWN, Jr., Attorney General;
MATHEW CATE, Secretary CDCR,
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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FLOURNOY v. SMALL
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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.
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 cir-
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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
We affirm the district court’s denial of habeas relief.
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
FLOURNOY v. SMALL
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coming into contact with the vaginal area. The nurse could
not determine whether the sexual contact was consensual or
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
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
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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
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
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.
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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.
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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).
 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
The 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
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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
 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.”).
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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.
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 fail-
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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
 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.
 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
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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.
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