Holland v. Lackner

Filing 38

ORDER DEMYING 1 Petition for Writ of Habeas Corpus, filed by David L. Holland. Signed by Judge James Donato on 10/13/15. (lrcS, COURT STAFF) (Filed on 10/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID L. HOLLAND,

Case No. 13-cv-02094-JD

Petitioner,
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v.
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HEIDI LACKNER,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

Respondent.

United States District Court
Northern District of California

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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 2254.

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The Court ordered respondent to show cause why the writ should not be granted. Respondent

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filed an answer and a memorandum of points and authorities in support of it, and lodged exhibits

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with the Court. Petitioner filed a traverse. The petition is denied.

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BACKGROUND
A jury found petitioner guilty of oral copulation by force committed during a burglary.

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People v. Holland, No. H034963, 2011 WL 4062376, at *1 (Cal. Ct. App. Sept. 14, 2011). It was

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also found that the victim was 65 years of age or older, and that petitioner had a prior strike

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conviction and a prior serious felony conviction. Id. Petitioner was sentenced to 25 years to life

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in prison. Id. The California Court of Appeal affirmed the judgment on appeal in a reasoned

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opinion. Id. The California Supreme Court denied a petition for review. Resp. Exs. H, I.

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In 2007, petitioner voluntarily provided a DNA sample to help with the investigation of his

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brother who was a suspect in an unrelated rape and murder. Reporter’s Transcript (“RT”) at 6-11.

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When petitioner provided the DNA sample, police were unaware that petitioner might have been

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involved in a 2001 rape and were not investigating petitioner for any crime. RT at 9-10, 33, 48.

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There was a match between petitioner’s DNA and a sample from the 2001 unsolved sexual assault

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of Gweneth Doe. RT at 544-45.
In October 2001, Gweneth Doe was 81 years old and lived independently in San Jose. RT

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at 392, 395, 417. In the spring of 2001, Gweneth had fence work done at her house. RT at 411.

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Her daughter, Lauren, visited her frequently. Lauren described Gweneth as normally a “talkative,

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cheerful kind of person.” RT at 396. On October 11, 2001, Lauren received a voicemail from

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Gweneth who stated she was calling from a neighbor’s house because her phones had been stolen.

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RT at 394. On October 12, 2001, Lauren went to her mother’s house. RT at 395. Lauren detected

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a sense of nervousness in her mother’s demeanor and thought she was in a stressful state and

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having a difficult time coping with something. RT at 397-99, 437.

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When queried, Gweneth stated that her phones had been stolen. RT at 401. When Lauren

United States District Court
Northern District of California

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asked if Gweneth was there when the phones were stolen, Gweneth replied, “Well, it was kind of a

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rape situation.” RT at 402. Gweneth stated that she had woken up in her bedroom in the middle

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of the night with a man on top of her. Id. She stated she was threatened with being killed, but had

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not been beaten. RT at 402-03. She had been wearing a nightgown and that “the man had told her

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to have oral sex with him and . . . she had to do that.” RT at 403. The man then told her to take a

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shower with her nightgown on. Id. When she was showering, the man had made some phone

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calls from the front room and told her not to come into the room. RT at 405. The incident

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occurred on October 10, 2001, between 4:30 and 6:30 in the morning. RT at 406. Gweneth could

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not identify the man. Id. Gweneth had not called the police. RT at 402. Lauren called 9-1-1 and

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reported what had happened. Id. Lauren’s conversation with Gweneth occurred before the police

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arrived. RT at 404, 450-51. Before police arrived, Gweneth did not talk to Lauren about the

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vaginal sex. RT at 462. In 2004, Gweneth died. RT at 440. In 2007, police contacted Lauren and

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told her there was a suspect. RT at 440-41.

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On November 16, 2007, petitioner was interviewed by police in a recorded interview. RT

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at 679; Clerk’s Transcript (“CT”) at 410. In 2001, he was 39 years of age. CT at 412. At first

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petitioner said he had no idea how his DNA ended up on the victim’s underwear. CT at 422-23.

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He then stated that there was no rape, rather it was consensual. CT at 423. He stated there were

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problems with his relationship with his wife and Gweneth was comforting him. CT 423-24. He
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met her while installing a fence for her. CT at 424. He stated that they were good friends and that

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night had been weird, that Gweneth did not want him to go, that she was clingy and there was “no

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actual sex.” CT at 426. He stated he was drunk and she never said no and that she tried to

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perform oral sex, but it didn’t happen. CT at 428-29. He stated they were both embarrassed about

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the whole situation and that she told him she felt dirty, and then she took a shower fully dressed.

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CT at 423, 426. He stated she did not want him to leave, but he left anyway. CT at 426, 429. He

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stated he saw her a few times shortly after that night and that she had nodded and waved to him a

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few times. CT at 430-31.

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A prison inmate, who had several convictions for fraud and other offenses, testified about
statements petitioner made while they shared a cell in November 2007. RT at 464-66, 475. The

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United States District Court
Northern District of California

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inmate said that petitioner admitted that he had known the victim kept a key under her mat and

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that he entered her house one morning when he was high on drugs. RT at 471, 473. He had

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thought she was out of town but he found her there, got into bed with her and made her perform

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oral sex on him. RT at 471. He threatened to kill her if she said anything and also stole some

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phones. RT at 474, 493. The prison inmate also recounted that petitioner stated he called a phone

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sex line and masturbated in a basket of laundry and wiped himself off with some underwear. RT

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at 472. A local newspaper article written in November 2007 stated that petitioner was charged

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with rape and forced oral copulation and mentioned phone sex, but it did not describe the

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masturbation or the victim’s underwear. RT at 700-01. The inmate did not receive any benefit for

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his testimony, though he did think there would be some benefit when he contacted law

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enforcement. RT at 466-69, 474.

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Petitioner’s trial counsel and the prosecution agreed to the following stipulations to be read
to the jury:
. . . . on October 12, 2001, Gweneth Doe was five feet, three inches
tall and weighed 125 pounds. . . . .
. . . . defendant has a date of birth of December 19, 1961. He is six
feet, two inches tall, weighed approximately 220 pounds in the fall
of 2001. . . . . . .
. . . . on October 12, 2001, a blood sample was taken from Gweneth
Doe at Valley Medical Center in San Jose. That blood sample is the
one on which the Santa Clara County Crime Laboratory conducted
forensic DNA analysis . . . .
. . . . Gweneth Doe was examined on October 12, 2001, by a
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qualified nurse who observed no visible injuries to her mouth,
vagina or any other parts of her body.
If called to testify that nurse would state that the absence of a sexual
injury alone does not necessarily mean that a person was not raped
or compelled to orally copulate another. Findings may vary from
patient to patient. Lack of sexual injuries includes a lack of
bruising, cuts, bleeding, swelling, abrasions, lacerations or redness.

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RT at 544-45.
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STANDARD OF REVIEW
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A district court may not grant a petition challenging a state conviction or sentence on the
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basis of a claim that was reviewed on the merits in state court unless the state court's adjudication
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of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United
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States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first

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prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor,
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529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual
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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is “contrary to” Supreme Court authority, that is, falls under the first
clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by

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[the Supreme] Court on a question of law or if the state court decides a case differently than [the
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Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.
A state court decision is an “unreasonable application of” Supreme Court authority, falling under

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the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the
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Supreme Court’s decisions but “unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be
“objectively unreasonable” to support granting the writ. Id. at 409.
Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will

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not be overturned on factual grounds unless objectively unreasonable in light of the evidence
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presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v.

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Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, in conducting its analysis, the federal

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court must presume the correctness of the state court’s factual findings, and the petitioner bears the

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burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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The state court decision to which § 2254(d) applies is the “last reasoned decision” of the

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state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d

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1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to

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consider the petitioner’s claims, the court looks to the last reasoned opinion. See Nunnemaker at

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801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
DISCUSSION

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United States District Court
Northern District of California

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As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erroneously

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admitted hearsay statements of the deceased victim in violation of the Confrontation Clause and

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his right to due process; and (2) the trial court erroneously admitted hearsay statements by forensic

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analysts in violation of the Confrontation Clause and his right to due process.1

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I.

VICTIM’S STATEMENT
Petitioner argues that his right to confrontation was violated when the trial court

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erroneously permitted the victim’s daughter to testify regarding the victim’s statements concerning

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the incident. He also argues that his due process rights were violated by the admission of this

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evidence.

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Confrontation Clause

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Legal Standard

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The Confrontation Clause of the Sixth Amendment provides that in criminal cases the

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accused has the right to “be confronted with the witnesses against him.” U.S. Const. Amend. VI.

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The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a

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procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004).

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A Fourth Amendment claim regarding his DNA sample was previously dismissed pursuant to
Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976), which bars federal habeas review of Fourth
Amendment claims unless the state did not provide an opportunity for full and fair litigation of
those claims.
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The Confrontation Clause applies to all “testimonial” statements. See Crawford, 541 U.S.

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at 50-51. “Testimony . . . is typically [a ]solemn declaration or affirmation made for the purpose

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of establishing or proving some fact.” Id. at 51 (alteration in original) (internal quotation marks

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omitted); see id. (“An accuser who makes a formal statement to government officers bears

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testimony in a sense that a person who makes a casual remark to an acquaintance does not.”). The

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Confrontation Clause applies not only to in-court testimony but also to out-of-court statements

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introduced at trial, regardless of the admissibility of the statements under state laws of evidence.

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Crawford, 541 U.S. at 50-51.
When the primary purpose of taking an out-of-court statement is to create an out-of-court

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substitute for trial testimony, the statement is testimonial hearsay and Crawford applies. Michigan

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United States District Court
Northern District of California

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v. Bryant, 131 S. Ct. 1143, 1155 (2011). See, e.g., Bullcoming v. New Mexico, 131 S. Ct. 2705,

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2712-14 (2011) (concluding that forensic lab report, prepared in connection with a criminal

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investigation, certifying that petitioner’s blood alcohol level was above limit for aggravated DWI

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was testimonial). When that was not the primary purpose, “the admissibility of a statement is the

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concern of state and federal rules of evidence, not the Confrontation Clause.” Bryant, 131 S. Ct. at

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1155. In determining the primary purpose of the statement, “standard rules of hearsay” will be

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relevant. Id. And the formality of the interrogation, or the lack of it, may inform the court’s

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inquiry as to its “primary purpose.” Id. at 1160. The primary purpose of a statement is

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determined objectively. United States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013).

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Thus, “‘the relevant inquiry is not the subjective or actual purpose of the individuals involved in a

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particular encounter, but rather the purpose that reasonable participants would have had, as

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ascertained from the individuals’ statements and actions and the circumstances in which the

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encounter occurred.’” Id. (quoting Bryant, 131 S. Ct. at 1156).

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Discussion

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The California Court of Appeal discussed the relevant federal authority and denied this

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claim:
Obviously, the initial statements of Gweneth to her daughter Lauren
were not products of an interrogation by a police officer or a 911
operator and there was no evidence that Lauren was acting as an
agent for law enforcement. Even assuming without deciding that a
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victim’s statements made in response to a family member’s
questions or volunteered to a family member might be testimonial
under certain circumstances, FN8 the record does not show that the
“primary purpose” of Gweneth’s disclosures was to create a record
for prosecution or a substitute for testimony. It is evident that the
“primary purpose” of Lauren’s inquiries was to uncover what had
happened to her mother and to help her. There was no evidence that
Gweneth confided in her daughter for the “primary purpose” of
making “‘[a] solemn declaration or affirmation made for the purpose
of establishing or proving some fact [ ]’ . . .” (Crawford, supra, 541
U.S. at p. 51) or for the “primary purpose” of providing “an out-ofcourt substitute for trial testimony.” (Michigan v. Bryant, supra,
131 S.Ct. at p. 1155; cf. People v. Griffin (2004) 33 Cal.4th 536,
580, fn. 19 [accusatory statement by victim to friend at school was
not testimonial for purposes of right to confrontation].)
FN8. For example, we can conceive of a situation where a
family member is merely acting as an intermediary and is
asking questions on behalf of law enforcement and relating
information directly from a victim to law enforcement or a
situation where a victim is having a family member record
her statements for purposes of creating a record for later use
at trial.
The circumstances of Gweneth’s initial statements to Lauren,
viewed objectively, lead us to conclude that they were not
testimonial. Accordingly, their admission was not violative of the
Sixth Amendment’s right to confrontation as interpreted by
Crawford and its progeny.
Holland, 2011 WL 4062376, at *8.

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Petitioner has failed to show that the state court decision was an unreasonable application
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of Supreme Court authority. There is no Supreme Court authority that establishes when
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statements made to someone other than law enforcement personnel are testimonial. In Davis v.
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Washington, 547 U.S. 813 (2006), the Supreme Court specifically declined to consider this issue.
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Id. at 823 fn. 2. The Court similarly declined to address the issue of statements to non-law
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enforcement personnel in Michigan v. Bryant, 131 S. Ct. at 1155, n.3. In Giles v. California, 554
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U.S. 353 (2008), the Court stated in dicta that, “[s]tatements to friends and neighbors about abuse

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and intimidation and statements to physicians in the course of receiving treatment would be
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excluded, if at all, only by hearsay rules . . . .” Id. at 376. Many circuit courts have also found
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that statements to friends and family members are non-testimonial pursuant to Crawford. See
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United States v. Lopez, 649 F.3d 1222, 1238 (11th Cir. 2011) (“bragging to a friend” is not
testimonial); United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011) (“statements made to

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friends and acquaintances are non-testimonial”); United States v. Smalls, 605 F.3d 765, 780 (10th
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Cir. 2010) (statement to “apparent friend” was “undoubtedly nontestimonial under any legitimate

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view of the law”); United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (“Mr. Rush’s

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comments were made to loved ones or acquaintances and are not the kind of memorialized,

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judicial-process-created evidence of which Crawford speaks”).
Assuming that statements to non-law enforcement individuals could be testimonial under

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certain circumstances, the discussion between the victim and her daughter in this case about the

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sexual assault was non-testimonial for purposes of the Confrontation Clause. The victim’s

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statements to her daughter were not for the purpose to create a record for prosecution or to act as a

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substitute for testimony nor were they a declaration made for the purpose to establish or prove a
fact. It is clear from the record that the victim’s statements were to answer the questions from her

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Northern District of California

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daughter about why she was behaving uncharacteristically and appeared in distress and why her

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phones were missing.2 The state court found that looking to the circumstances of the individuals

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during the discussion, the statements were non-testimonial. In reaching this conclusion, the state

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court decision did not unreasonably apply Supreme Court authority.

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Due Process

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Petitioner also argues that the trial court erred by admitting the statements under state

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hearsay rules which violated due process and denied him a fair trial.

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Legal Standard

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A state court’s evidentiary ruling is not subject to federal habeas review unless the ruling

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violates federal law, either by infringing upon a specific federal constitutional or statutory

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provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.

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See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th

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Cir. 1991). The Supreme Court “has not yet made a clear ruling that admission of irrelevant or

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overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of

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the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court’s

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admission of irrelevant pornographic materials was “fundamentally unfair” under Ninth Circuit

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The trial court excluded the victim’s statements to a police officer and a sexual assault response
nurse, finding that these statements were testimonial. Holland, 2011 WL 4062376, at *5.
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precedent but not contrary to, or an unreasonable application of, clearly established Federal law

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under § 2254(d)).

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To obtain federal habeas relief based upon a state court’s admission of evidence, a

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petitioner must show that the admission of the evidence was so prejudicial that it rendered the trial

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fundamentally unfair in violation of due process. Estelle v. McGuire, 502 U.S. 62, 70 (1991);

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Jammal, 926 F.2d at 919. “A habeas petitioner bears a heavy burden in showing a due process

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violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.

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2005). The Supreme Court has “defined the category of infractions that violate ‘fundamental

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fairness’ very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990). The Ninth Circuit
has noted that the admission of evidence violates due process only if “there are no permissible

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inferences the jury may draw from the evidence.” Jammal, at 920.

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Discussion

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The trial court admitted the statements as spontaneous utterances under California

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Evidence Code section 1240. The California Court of Appeal found that the trial court abused its

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discretion in admitting the statements as spontaneous utterances but evaluated the error under the

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harmless error standard of People v. Watson, 46 Cal. 2d 818, 836 (1956), and found no error as the

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evidence was properly admissible for nonhearsay purposes as a “fresh complaint.” The state court

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held:

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We observe that the evidence of Gweneth’s complaint was relevant
and admissible for nonhearsay purposes. “[U]nder principles
generally applicable to the determination of evidentiary relevance
and admissibility, proof of an extrajudicial complaint, made by the
victim of a sexual offense, disclosing the alleged assault, may be
admissible for a limited, nonhearsay purpose-namely, to establish
the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others-whenever the fact that the
disclosure was made and the circumstances under which it was
made are relevant to the trier of fact’s determination as to whether
the offense occurred.” (People v. Brown (1994) 8 Cal. 4th 746, 749750, italics omitted; see also Evid. Code, §§ 210, 351.) “Of course,
only the fact that a complaint was made, and the circumstances
surrounding its making, ordinarily are admissible; admission of
evidence concerning details of the statements themselves, to prove
the truth of the matter asserted, would violate the hearsay rule. (4
Wigmore, op. cit. supra, § 1142, p. 318.)” (Id. at p. 760.)
“In sexual as well as nonsexual offense cases, evidence of the fact
and circumstances of a victim’s complaint may be relevant for a
variety of nonhearsay purposes, regardless whether the complaint is
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prompt or delayed. To begin with, if such a victim did, in fact,
make a complaint promptly after the alleged incident, the
circumstances under which the complaint was made may aid the
jury in determining whether the alleged offense occurred.
Furthermore, admission of evidence that such a prompt complaint
was made also will eliminate the risk that the jury, if not apprised of
that fact, erroneously will infer that no such prompt complaint was
made.” (Id. at p. 761.)
Defendant is not disputing that evidence of the fact of and the
circumstances surrounding Gweneth’s complaint of forcible oral
copulation was admissible for nonhearsay purposes. FN9 That
evidence considered for nonhearsay purposes together with other
incriminating evidence, stipulated facts, and reasonable inferences
satisfy us that the erroneous admission of the victim’s statements for
their truth was harmless. It was stipulated that Gweneth was five
feet, three inches tall and weighed 125 pounds on October 12, 2001.
It was also stipulated that defendant was six foot, two inches tall and
weighed 220 pounds in the fall of 2001 and he was born on
December 19, 1961, which made him 39 years old in October 2001.
As indicated, Gweneth was 81 years old at that time.
FN9. “[T]he admissibility of such evidence does not turn
invariably upon whether the victim’s complaint was made
immediately following the alleged assault or was preceded
by some delay, nor upon whether the complaint was
volunteered spontaneously by the victim or instead was
prompted by some inquiry or questioning from another
person. Rather, these factors simply are to be considered
among the circumstances of the victim’s report or disclosure
that are relevant in assisting the trier of fact in assessing the
significance of the victim’s statements in conjunction with
all of the other evidence presented.” (People v. Brown,
supra, 8 Cal.4th at p. 763.)
The evidence showed that Sergeant Paula McAllister with the Santa
Clara County Sheriff's Office interviewed defendant in November
2007. When defendant was first confronted with information that
his DNA had been found in the underwear of a much older woman
named Gweneth, defendant at first could not recall her but, later in
the same interview, he admitted that she tried to give him a “blow
job” but it “wasn’t happening” and claimed it was entirely
consensual. FN10 He recalled that she walked into the shower fully
dressed because she felt dirty. Defendant also confirmed that he
worked for a week putting up a new fence for Gweneth. He recalled
that she brought him lemonade. There was no evidence to suggest
that defendant’s incriminating admissions to the sergeant should not
be believed.
FN10. “Oral copulation is any contact, no matter how slight,
between the mouth of one person and the sexual organ or
anus of another person.” (CALCRIM No. 1015 (2010 ed.) p.
819; see § 288a, subd. (a) [“Oral copulation” within the
meaning of section 288a is “the act of copulating the mouth
of one person with the sexual organ or anus of another
person”].)
A cellmate with whom defendant had been briefly housed in jail
recalled defendant saying that he had done fencing work for
someone named Gweneth or Gwen and he had known there was a
house key under the mat. Defendant had admitted that he had
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entered her home but he had not expected her to be there.
According to the cellmate, defendant said that when he discovered
her in the bedroom, he crawled into her bed and made Gweneth give
him a “blow job.” This statement was consistent with defendant’s
previous statement to the sergeant indicating there had been an act
of oral copulation. Defendant disclosed to the cellmate that he had
threatened to kill her if she said anything but reported that he had
told Sergeant McAllister that the encounter was consensual.
Defendant’s statements to the cellmate supported an inference that
his repeated assertions to the sergeant that the “blow job” was
consensual were untruthful. In addition, defendant told the cellmate
that he had used a telephone in her living room to have phone sex.
Defendant said that he had masturbated, ejaculated, and wiped
himself on panties that he grabbed from a basket of laundry.
The fact that, during the sergeant’s interrogation, defendant could
not at first remember the decades-older Gweneth, for whom he had
done fence work over the course of a week and who he admitted
later in the interview had tried to give him a “blow job,” casts doubt
upon defendant’s claim that the act of oral copulation was
consensual. Defendant’s admissions to his cellmate regarding
forcible oral copulation and his use of Gweneth’s phone during the
incident and Lauren’s testimony that she could not find any of her
mother’s telephones after the incident also undermine any assertions
that sexual contact was consensual. Although Gweneth’s statements
were not admissible for their truth, the fact and circumstances of her
complaint to her daughter that there had been “sort of a rape
situation” involving oral sex not long after the alleged incident
strengthened the evidence that a crime had occurred.
We conclude that the error in admitting the victim’s hearsay
description of the incident under the spontaneous-statement
exception to the hearsay rule was harmless because it is not
“reasonably probable that a result more favorable to [defendant]
would have been reached in the absence of the error.” (People v.
Watson, supra, 46 Cal.2d at p. 836.)
Holland, 2011 WL 4062376, at *11-13.
Petitioner has failed to meet his heavy burden in demonstrating that the admission of the

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evidence was so prejudicial that it rendered the trial fundamentally unfair. In his petition,

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petitioner only argues that the evidence was improperly admitted under state law and the “fresh

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complaint” exception. Whether or not the statements were improperly admitted is solely an issue

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of state law. Estelle, 502 U.S. at 67 (an inquiry into whether evidence was correctly admitted

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under California law “is no part of a federal court's habeas review of a state conviction”).

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Petitioner does not present arguments to support his claim that the admission of the evidence

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deprived him of a fundamentally fair trial.

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On direct appeal petitioner conceded that the day, time, place, and circumstances when
Gweneth first told her daughter about the incident were admissible under the “fresh complaint”
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principle. Resp. Ex. C at 42-43. Petitioner argued that the testimony regarding the details of the

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offense were not admissible. Thus, it was proper for statements to be admitted that set forth that

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the victim stated she was sexually assaulted, just not the details.
The evidence that was improperly admitted was relative and probative of the issue of

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consent because Gweneth’s report of the sexual assault was contrary to petitioner’s statement that

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the encounter was consensual. Only if there are no permissible inferences that the jury may draw

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from the evidence can its admission violate due process. See Jammal, 926 F.2d at 920. Because

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there were permissible references to be drawn from the evidence, the admission of the statements

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did not render the trial fundamentally unfair. See e.g., Alcala v. Woodford, 334 F.3d 862, 886-88

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(9th Cir. 2003) (admission of knives found in defendant’s residence was prejudicial constitutional

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error where the jury could draw no permissible probative inference from evidence, because alleged

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murder weapon was a knife made by same manufacturer but was commonly available, had a

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different design, was sold separately and was not owned by defendant). While the details of the

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incident were not properly admitted under state law, the vital evidence that the victim reported a

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sexual assault was admissible under the “fresh complaint” doctrine. While it is clear this

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erroneously admitted evidence was detrimental to petitioner, the Court does not find that he has

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met his heavy burden in demonstrating that it was so prejudicial that it rendered the trial

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fundamentally unfair.

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Moreover, as noted by the state court, there was additional evidence that pointed to

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petitioner’s guilt and that the encounter was not consensual. The other inmate testified that

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petitioner admitted his guilt and the inmate was aware of details that were not publicly known.

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Aspects of petitioner’s statement to police also cast doubt on his claim that the incident was

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consensual. Because petitioner has not met the heavy burden in demonstrating that the admission

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of the evidence was so prejudicial that it rendered the trial fundamentally unfair, this claim is

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denied.

26 II.
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FORENSIC ANALYSTS
Petitioner next contends that his right to confrontation was violated when lab supervisors

testified regarding certain DNA tests performed by other analysts and that this also violated his
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due process rights.

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Background

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Prior to the DNA evidence being presented, petitioner’s trial counsel objected to the

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testimony of analysts Jones and Skinner, who did not perform all the laboratory analysis in

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question, but were to testify regarding certain analyses performed by other technicians. Holland,

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2011 WL 4062376, at *13. The prosecutor indicated he was planning on laying the foundation for

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admission of the laboratory analyses as business records. Id. The trial court overruled trial

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counsel’s objection because at that time the California Supreme Court case of People v. Geier, 41

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Cal. 4th 555 (2007), was controlling and allowed for such evidence to be admitted. Id.

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United States District Court
Northern District of California

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The following testimony was heard at trial:
After the trial court overruled defense counsel’s objections in this
case, the prosecution called Jocelyn Jones, a supervising criminalist
at the Santa Clara County Crime Laboratory, and Elizabeth Skinner,
who worked as a criminologist in that laboratory and conducted
forensic DNA analysis. The court recognized both witnesses as
experts in the field of forensic DNA analysis.
Supervising criminalist Jones testified about the defendant’s DNA
profile developed by analyst Hall, who was no longer working for
the laboratory at the time of trial. Jones was familiar with Hall’s
report. Hall’s report and accompanying notes were not admitted
into evidence. Exhibit 15, a DNA chart comparing defendant’s
DNA profile generated from his DNA sample with the DNA profiles
developed from two cuttings from the victim’s underwear, was
admitted into evidence.
Jones testified that the results of the DNA testing of defendant’s
sample and the underwear cuttings showed a match at all loci tested.
She explained the significance of the match in terms of the
probability in a particular population. She stated that the random
match probability in the Caucasian population was one in 160
quadrillion, in the Hispanic population it was one in “one
quintillion, 400 quadrillion,” and in the African–American
population it was one in 45 quadrillion. The database match
probability for the Caucasian population was “one in 26 Trillion.”
In reaching her opinions, Jones relied on Hall’s and Skinner’s
reports and accompanying notes.
Skinner testified that in 2002 she did forensic DNA analysis on two
cuttings from a pair of underwear, which had been found by an
officer found under the alleged victim’s bed. Skinner confirmed that
the report and notes contained in exhibit 16, which was identified at
trial but not admitted into evidence, were her work. Skinner
confirmed that exhibit 15, the DNA chart, reflected the forensic
DNA analysis that she had done on the two underwear cuttings.
Skinner also developed the DNA profile for Gweneth Doe’s
reference blood sample and the DNA chart, exhibit 17, which was
admitted into evidence, reflected that DNA profile.
The two experts’ testimony also indicated that a nontestifying
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analyst named Jennifer Zawacki conducted serological work and
identified a sperm cell on the underpants near the cuttings analyzed
by Skinner. Zawacki’s report and accompanying notes were
identified as exhibit 19 but the exhibit was not admitted into
evidence before the jury. There was testimony that Zawacki’s notes
indicated that Zawacki observed a sperm cell but her notes did not
say whether it was human or animal.
Holland, 2011 WL 4062376, at *14-15 (footnotes omitted).

5

Discussion

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The jury found petitioner guilty on May 27, 2009. On June 25, 2009, the Supreme Court
issued Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Supreme Court found that

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affidavits reporting results of forensic analysis were testimonial under Crawford because they

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were made under circumstances where an objective witness would reasonably believe they would

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be used at trial. Id. at 310-11. In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Supreme

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Court held that “[t]he accused’s right is to be confronted with the analyst who made the

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certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial,

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to cross-examine that particular scientist.” Id. at 2710.

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Based on these and other cases, the California Court of Appeal found that petitioner’s right

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to confrontation was violated when the expert witnesses testified about forensic testing done by

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two analysts who did not testify. Holland, 2011 WL 4062376, at *18-19. While petitioner’s

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rights were violated, the state court found that the error was harmless:
A violation of the right to confrontation is subject to harmless-error
analysis under Chapman v. California, supra, 386 U.S. 18, 24 [87
S.Ct. 824]. FN19 (Coy v. Iowa (1988) 487 U.S. 1012, 1021 [denial
of face to face confrontation]; Delaware v. Van Arsdall (1986) 475
U.S. 673, 682 [“denial of the opportunity to cross-examine an
adverse witness does not fit within the limited category of
constitutional errors that are deemed prejudicial in every case”], 684
[holding that “the constitutionally improper denial of a defendant's
opportunity to impeach a witness for bias, like other Confrontation
Clause errors, is subject to Chapman harmless-error analysis”].)
“An assessment of harmlessness cannot include consideration of
whether the witness' testimony would have been unchanged, or the
jury's assessment unaltered, had there been confrontation; such an
inquiry would obviously involve pure speculation, and harmlessness
must therefore be determined on the basis of the remaining
evidence.” (Coy v. Iowa, supra, 487 U.S. at pp. 1021–1022.) “The
correct inquiry [for purposes of harmless-error analysis] is whether,
assuming that the damaging potential of the cross-examination were
fully realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt. Whether such an error is
harmless in a particular case depends upon a host of factors . . .
includ[ing] the importance of the witness’ testimony in the

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prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength
of the prosecution’s case. Cf. Harrington, 395 U.S., at 254, 89
S.Ct., at 1728; Schneble v. Florida, 405 U.S., at 432, 92 S.Ct., at
1059.” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
FN19. Bullcoming, Melendez–Diaz, and Crawford do not
demonstrate that the denial of the constitutional right of
confrontation is a structural error that is reversible per se.
(See Bullcoming, supra, 131 S.Ct. at p. 2719, fn. 11 [court
stated that it expressed no view on whether the confrontation
clause error in that case was harmless]; Melendez–Diaz,
supra, 129 S.Ct. at p. 2542, fn. 14 [same ]; Crawford, supra,
541 U.S. at p. 42, fn. 1 [same].) Rather, in each case, the
court remanded the case for further proceedings not
inconsistent with its opinion. (Bullcoming, supra, 131 S.Ct.
at p. 2719; Melendez–Diaz, supra, 129 S.Ct. at p. 2542;
Crawford, supra, 541 U.S. at p. 69.) Unlike the structural
error of erroneously depriving a defendant of the right to
counsel of choice under the Sixth Amendment, the
consequences of which are necessarily unquantifiable and
indeterminate and which is not subject to harmless-error
analysis (U.S. v. Gonzalez–Lopez (2006) 548 U.S. 140, 150–
152 [126 S.Ct. 2557] ), the deprivation of the right of
confrontation with respect to hearsay evidence is a trial error
that occurs “during presentation of the case to the jury” and
the effect of such error may “be quantitatively assessed in
the context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable
doubt.” (Arizona v. Fulminante (1991) 499 U.S. 279, 308
[111 S.Ct. 1246]; cf. Crane v. Kentucky (1986) 476 U.S. 683,
686, 691 [106 S.Ct. 2142] [erroneous exclusion of testimony
about the circumstances of the defendant’s confession
intended to “cas[t] doubt on its validity and its credibility”
was subject to harmless error analysis].) This is not a case
where the defendant was entirely deprived of the right to
confront or cross-examine the witnesses against him, which
presumably would be a structural error. (Cf. U.S. v. Cronic
(1984) 466 U.S. 648, 659 [104 S.Ct. 2039] [“if counsel
entirely fails to subject the prosecution's case to meaningful
adversarial testing, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself
presumptively unreliable”].) “In those limited instances in
which [the U.S. Supreme] Court has found an error
‘structural,’ [it has] done so because the error defies analysis
by harmless-error standards. [Citations.]” (Hedgpeth v.
Pulido (2008) 555 U.S. 57, 67 [129 S.Ct. 530].)
Any confrontation error with respect to forensic evidence generated
by nontestifying analysts was harmless beyond a reasonable doubt in
the specific circumstances of this case because the identity of the
perpetrator was not an issue at trial and defendant admitted to being
in Gweneth’s home and engaging in sexual activity. The defense
was never that defendant had been misidentified as the assailant. At
trial, the closing argument was that there was no forcible oral
copulation and the rape-like situation referred to by the alleged
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victim involved defendant’s act of masturbation: “Gweneth Doe saw
something very upsetting. I think she saw my client masturbating in
the living room. That’s very upsetting. That’s the rape-like
situation that she saw.” Thus, any violation of the right to confront
Hall and Zawacki regarding their forensic testing was harmless
beyond a reasonable doubt. FN20
FN20. By virtue of the same reasoning, any violation of the
hearsay rule would be harmless under the Watson standard of
review. (People v. Watson, supra, 46 Cal.2d 818, 836.)
Consequently, we need not consider whether the evidence of
forensic testing performed by and determinations made by
the nontestifying analysts was admissible for its truth under
the business record exception to the hearsay rule. (See Evid.
Code, §§ 1200, 1271.) Further, under the facts of this case, it
is unnecessary to decide whether a testifying expert’s
reliance on the truth of extrajudicial testimonial statements in
reaching an opinion and the expert’s testimony regarding
those statements for purposes of evaluating the opinion
testimony implicates the confrontation clause.
Holland, 2011 WL 4062376, at *19-20.

United States District Court
Northern District of California

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Respondent first argues that there was no violation of petitioner’s right to confrontation. A

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year after the California Court of Appeal issued its decision in this case, the Supreme Court
13
decided Williams v. Illinois, 132 S. Ct. 2221 (2012). In Williams, the Supreme Court held that
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expert testimony regarding a laboratory report by non-testifying analysts did not violate the
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Confrontation Clause because the lab report, which was not introduced into evidence, was not
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testimonial because it (1) had not been “prepared for the primary purpose of accusing a targeted
individual . . . or to create evidence for use at trial,” and (2) lacked, unlike the lab reports at issue

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in Melendez-Diaz and Bullcoming, an affidavit or declaration attesting to the truth of the matters
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contained in the report. Id. at 2243, 2260.
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Respondent argues that the facts of this case are similar to Williams, thus there was no
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violation of the right to confrontation. The Court need not address if there was a violation of the
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Confrontation Clause because even assuming there was a violation, the error was harmless in this
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case. A Confrontation Clause claim is subject to harmless error analysis. See Winzer v. Hall, 494
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F.3d 1192, 1201 (9th Cir. 2007) (violation of Confrontation Clause is trial error subject to
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harmless error analysis in Brecht v. Abrahamson, 507 U.S. 619 (1993)). “Under this standard,

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habeas petitioners . . . are not entitled to habeas relief based on trial error unless they can establish
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that it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637. Actual prejudice, in turn, is

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demonstrated by the petitioner “if the error in question had a ‘substantial and injurious effect or

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influence in determining the jury’s verdict.’” Winzer, 494 F.3d at 1201 (quoting Brecht).

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Petitioner has failed to demonstrate that the admission of the DNA evidence had a

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substantial and injurious effect or influence in determining the jury’s verdict. As noted by the

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California Court of Appeal, it was undisputed that petitioner had been in the victim’s house and

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that there had been some type of sexual encounter because he admitted these facts to police well

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before trial. The testimony of petitioner’s cellmate also corroborated this fact. The vital issue at

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trial was consent, not identity.
In closing argument, petitioner’s trial counsel emphasized the DNA evidence by noting

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that the underwear had mostly petitioner’s DNA and only minor amounts from the victim, which

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United States District Court
Northern District of California

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suggested that the victim had not been wearing the underwear when petitioner’s DNA was

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deposited onto it. RT at 1018-19. Trial counsel argued that this supported petitioner’s cellmate’s

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testimony that petitioner masturbated and then ejaculated on the underwear. Id. Trial counsel

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argued that petitioner was in the house, had called a sex line on the phone, and was masturbating

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with the victim’s clothing when the victim came out of her room and saw him. RT at 1019. She

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was understandably shocked, and this is what she referred to as a “rape-like situation.” RT at

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1020. Thus, the DNA evidence was of minor importance in petitioner’s trial and, assuming it was

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erroneously admitted in violation of petitioner’s right to confrontation, any error was harmless

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because the admission of the evidence did not have a substantial and injurious effect or influence

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in determining the jury’s verdict. This claim is denied.3

21 III.

CERTIFICATE OF APPEALABILITY
The federal rules governing habeas cases brought by state prisoners require a district court

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that issues an order denying a habeas petition to either grant or deny therein a certificate of

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appealability. See Rules Governing § 2254 Cases, Rule 11(a).
A judge shall grant a certificate of appealability “only if the applicant has made a

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substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the

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For these same reasons, any due process claim is denied. Petitioner cannot show that the
admission of the DNA evidence was so prejudicial that it rendered the trial fundamentally unfair.
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certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)

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is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

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473, 484 (2000).

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Here, petitioner has made no showing warranting a certificate and so none is granted.

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CONCLUSION

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United States District Court
Northern District of California

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For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A Certificate
of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases.
IT IS SO ORDERED.
Dated: October 13, 2015
______________________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID L. HOLLAND,

Case No. 13-cv-02094-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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HEIDI LACKNER,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on October 13, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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David L. Holland ID: AB3615
Sierra Conservation Center
5150 O'Byrnes Ferry Road
Jamestown, CA 95327

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Dated: October 13, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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