Schunn
v.
Schriro

United States Court of Appeals, Ninth CircuitJul 3, 2008
284 Fed. Appx. 511 (9th Cir. 2008)

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No. 06-15616.

Submitted June 18, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed July 3, 2008.

John Michael Schunn, Arizona State Prison Central Arizona Correctional Facility, Florence, AZ, for Petitioner-Appellant.

Nicholas Acedo Fax, Office of the Arizona Attorney General, Phoenix, AZ, for Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona, Neil v. Wake, District Judge, Presiding. D.C. No. CV-04-01905-NVW.

Before: REINHARDT, LEAVY, and CLIFTON, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

John Schunn, an Arizona state prisoner, appeals pro se the denial of his habeas corpus petition under 28 U.S.C. § 2254. He was convicted for burglary, armed robbery, sexual assault, and three counts of kidnapping. He contends that the admission at his retrial of a co-defendant's prior trial testimony violated his Sixth Amendment right of confrontation because the co-defendant was not "unavailable." We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

"[H]abeas relief is warranted only where the state court's adjudication of the merits: `(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'" Bockting v. Bayer, 505 F.3d 973, 977 (9th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

"[T]he prosecution may introduce the prior testimony of a witness without running afoul of the Sixth Amendment, as long as two criteria are met: `First, the prosecutor must prove that the witness is unavailable to testify at trial. Second, the defendant must have had the opportunity to cross-examine the witness at the prior hearing.'" Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008) (quoting Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir. 1998)). "A witness will be deemed `unavailable' only if `the prosecution authorities have made a good-faith effort to obtain his presence at trial.'" Id. at 1083 (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)). "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quotation omitted).

Schunn's co-defendant, who already had served his sentence, testified at Schunn's first trial, which ended in a mistrial on January 20, 2000. As stated by the district court, two Maricopa County Attorney's Office investigators and a police officer took numerous actions aimed at securing the co-defendant's presence at Schunn's retrial, including telephone calls and surveillance. In addition, after the first trial, the trial court and the prosecutor informed the co-defendant that he still was under subpoena. We affirm the district court's conclusion that the prosecution made a good faith effort and that the co-defendant was unavailable to testify at Schunn's retrial. See Jackson, 513 F.3d at 1082-83. AFFIRMED.

To the extent that Schunn raises uncertified issues in his opening brief and requests broadening of the certificate of appealability, the request is denied.