BARNETT v. PREMO (2018)

MEMORANDUM **

At Appellant Trivonne Barnett’s state trial for attempted murder and firearms charges, the prosecutor stated to the trial judge that he would “get to” charge a state’s witness with perjury if the witness provided testimony that was different from that given at the witness’s second appearance before the grand jury. Appellant contends that this state’s witness’s testimony would have been favorable to the defense on cross-examination, and that the prosecutor’s statement and the ensuing lengthy colloquy between the prosecutor and the trial judge caused the state’s witness to invoke the Fifth Amendment.

After conviction and state court appeals, Appellant filed a federal petition for a writ of habeas corpus, arguing that his due process rights to present his defense were violated under Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). The district court accepted the magistrate judge’s Findings and Recommendation and denied his petition, but issued a certificate of appealability regarding the issue of prosecutorial misconduct under Webb.

We affirm. The record in this case does not justify reversal. Webb did not “clearly establish[ ]” that a defendant’s due process rights are violated when a prosecutor’s threat of perjury charges causes a state’s witness to refuse to testify. 28 U.S.C. § 2254(d)(1); see United States v. Juan, 704 F.3d 1137, 1141 (9th Cir. 2013). Rather, the Supreme Court in Webb reversed the petitioner’s conviction because the trial judge’s threatening remarks about perjury were “directed only at the single witness for the defense” and “effectively drove that [defense] witness off the stand.” Webb, 409 U.S. at 98, 93 S.Ct. 351; see also Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (“It is well established that ‘substantial government interference with a defense witness’s free and unhampered choice to testify amounts to a violation of due process.’ ”).

AFFIRMED.