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GLASS v. RUNNELS

United States District Court, Northern District of California


May 27, 2003

DONALD PAUL GLASS, PETITIONER,
v.
DAVID RUNNELS, RESPONDENT.

The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Donald Paul Glass. For the reasons discussed below, the court will deny the petition.

BACKGROUND

A. Procedural History

Following a jury trial in Santa Clara County Superior Court, Donald Paul Glass was convicted of kidnapping, rape, infliction of corporal injury on a cohabitant, possession of a controlled substance, and use of a controlled substance. The jury also found true an allegation that the kidnap was of a rape victim, which made Glass ineligible for probation and subject to a life prison term. Cal. Ct. App. Opinion, p. 2. Glass was sentenced to fifteen years to life in state prison on January 30, 1998.

He filed an appeal and a petition for writ of habeas corpus. The California Court of Appeal affirmed his conviction and denied his petition. The California Supreme Court denied his petition for review.

Glass then filed this action, seeking a writ of habeas corpus. He raised two claims in his petition: ineffective assistance of counsel in that counsel failed to oppose introduction of expert witness evidence and a due process violation based on the admission of the same expert's testimony. The court issued an order to show cause why the petition should not be granted. Respondent filed an answer in which he argued the lack of merit in the ineffective assistance claim and argued that the due process claim was procedurally barred. Petitioner did not file a traverse and the deadline to do so passed. The matter is now ready for the court's consideration.

B. The Crimes

The evidence presented at trial was described in the California Court of Appeal's opinion (with which Glass agrees, see Petition For Review, p. 4) and is summarized below:

At about 3:00 or 4:00 a.m. on May 25, 1996, Donald Glass went to the home of Donna Parker, a friend of his girlfriend — victim Randi C. — and forcibly removed Randi from the home. Glass called from outside for Randi to open the door; Parker opened the front door as Randi stood in the bedroom doorway. Glass approached Randi, grabbed her wrist and asked her to come outside and talk. They went outside and talked about difficulties in their relationship. When Randi refused to accompany Glass to his van, Glass grabbed her, picked her up, threw her over his shoulder and carried her away. Although he said he was not going to hurt her, she screamed and cried for help and for him to let her go. Randi broke free and fell to the grass; Glass picked her up and carried her to the van as Randi continued to resist.

Parker called 9-1-1 and called Randi's mother to report what had happened after Glass took Randi from her home. A neighbor heard a woman screaming and saw "someone put something into the passenger side of a van parked about four houses from her. This person closed the door, ran around the van, entered the driver's seat, and hurriedly drove away." Resp. Exh. C, California Court of Appeal Opinion ("Cal. Ct. App. Opinion"), p. 5.

Glass put Randi in the passenger seat of the van and threatened to kill her if she tried to escape. Glass drove her about ten miles to his home and threatened her. He held her elbow in a manner which immobilized her arm as they walked up the front steps of the home. "In the room they previously shared, Randi sat on the bed while defendant paced and accused her [of] having an affair with Donna. He also told Randi he loved her, he did not mean to hurt her, and they were meant to be together. Randi did not respond but sat crying." Cal. Ct. App. opinion, p. 6. Glass lay down on the bed, closed his eyes, and snored. Randi wanted to leave but was frightened to crawl over him to get out of the bed, did not have her shoes or a car, and did not think the area was safe at that time. The telephone rang; it was Parker calling. Glass hung up the phone after saying he did not need her kind of help.

Glass then started kissing and touching Randi on her shoulders and back. Randi did not want Glass touching her; she tried to move away and was crying. Glass put his hands down Randi's pants and tried to remove them. He unbuttoned and unzipped her jeans, unsnapped her body suit and either removed her underpants or pushed them aside. He touched her breasts and digitally manipulated her vaginal area. He was interrupted by a ringing telephone. Randi's mother, Deanna, was calling and Glass passed the telephone to Randi. Deanna testified that Randi was crying and sobbing hysterically as they talked. Deanna called the police after Randi indicated she wanted that done. After the call, and while Randi was in a fetal position on her side and indicating she did not want Glass to approach, Glass entered her from behind forcefully. Randi wanted defendant off of her and continued to cry. Glass withdrew from Randi when the police arrived. Randi did not think Glass had ejaculated during the sex.

When the police arrived, Glass pulled aside the curtain and told Randi it was the police and that she finally got what she wanted. Methamphetamine in an ashtray and in an envelope was found in the bedroom by police. A police officer who saw Glass thought he was under the influence of methamphetamine.

A blood sample drawn from Randi contained methamphetamine, although Randi testified she had not used methamphetamine in the 4-5 days before the incident. Randi tested negative for the presence of alcohol, although she testified that she had 3-4 beers. She also had smoked marijuana with her friend the night before the early morning incident.

Randi was taken to the Valley Medical Center and was seen by a sexual assault response team ("SART") nurse examiner, Anita Ruiz-Contreras. Ruiz-Contreras — who later testified at trial as an expert witness — obtained an oral history, did a physical examination, and filled out forms for a sexual assault. She observed abrasions of Randi's posterior fourchette and redness/irritation on her labia minora. She opined that Randi's injuries were not consistent with a consensual sexual event and were consistent with the history of sexual assault provided by Randi.

While Glass was in jail after the incident, Randi wrote to him and sent him a picture of their daughter. Randi thought she still loved him and tried to make things work because they had a daughter. Her dream was to be married and to have a house and family. While in jail, Glass sent Randi a letter urging her to testify she was drunk, he was high, she did not know what had happened, and her mother had threatened to take away their daughter. By the time of trial, Randi testified that her relationship with Glass was over and denied that her mother had threatened to take away their daughter.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims asserted in Glass' petition.

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(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 proceeding." 28 U.S.C. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

DISCUSSION

A. Procedural Default

A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. Federal habeas review of the procedurally defaulted claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750.

The state appellate court's statement regarding Glass' due process claim requires this court to determine whether the state court imposed a procedural bar and, if so, whether such a bar ought to be honored here. The first point is to consider whether a procedural bar was imposed. In his brief to the California Court of Appeal, Glass claimed that his counsel was ineffective in not objecting to the admission of expert testimony. He did not assert in the California Court of Appeal that his right to due process was violated by the admission of the expert testimony, although he did raise the claim later in the California Supreme Court. The California Court of Appeal stated in its opinion: "Recognizing that his failure to object below on the grounds raised here precludes a direct challenge to the expert testimony in question (People v. Roberts (1992) 2 Cal.4th 271, 298; People v. Hayes (1990) 52 Cal.3d 577, 623), defendant claims his trial counsel provided ineffective assistance of counsel by failing to object to nurse Ruiz-Contreras's testimony on the above-cited grounds." Cal. Ct. App. Opinion, p. 10. The court then went on to analyze the ineffective assistance of counsel claim.

Because Glass had not actually presented a federal due process claim to the California Court of Appeal, the claim was not before that court for decision. This court will not impose a procedural bar based on the state court's statement about a claim not pending before it. Glass asserted his federal due process claim for the first time in state court in the California Supreme Court in his petition for review. See Resp. Exh. D, p. 30. The California Supreme Court summarily denied the petition without citation to any procedural bar. See Resp. Exh. B. The California Supreme Court did not impose the procedural bar. Although there is a presumption that, where the last reasoned opinion on a claim expressly imposed a procedural bar, a later state court decision summarily rejecting the claim did not silently disregard the bar and consider the merits, see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), that presumption does not apply here. The court will not look through the California Supreme Court's unexplained decision to the California Court of Appeal's decision because the claim was not raised until the case had reached the California Supreme Court. Cf. id. at 804. There was no procedural bar actually imposed by the only court to have actually had the issue before it. Accordingly, this court can and will address the merits of the due process claim.

B. Legal Claims

1. Ineffective Assistance Of Counsel Claim

Glass claims that he received ineffective assistance of counsel from his trial counsel in that counsel failed to object to the admission of certain expert testimony. He argues that counsel "failed to challenge Ruiz-Contreras' qualifications to testify as an expert that Randi's injuries were inconsistent with consensual sex, and when he refrained from objecting to specific testimony that the `history' (i.e., allegation of sexual assault) provided by Randi was accurate and that Randi had not consented to intercourse with [Glass]." Petition For Review, p. 7 (emphasis omitted). Glass treads a very thin line with his claim. He admits that Ruiz-Contreras could testify that Randi's physical condition was consistent with nonconsensual sex while taking issue with her testimony that the physical condition was inconsistent with consensual sex.

The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).

The California Court of Appeal rejected Glass' argument in a lengthy analysis. First the court discussed Ruiz-Contreras' extensive background. Ruiz-Contreras was a long-time registered nurse who worked in the emergency room, an "emergency department educator," and a sexual assault nurse examiner. See Cal. Ct. App. Opinion, pp. 10-11. She had formal education in nursing (including receiving a Master's Degree in nursing in 1992) and had taken continuing education in her area of specialization. She had taken courses in and had been trained in sexual assault treatment at two hospitals and had received training from the Office of Criminal Justice Plan, which developed a protocol on treatment of sexual assault victims. She testified that in the last 10 years, she had conducted 253 SART examinations, and had testified on SART sexual assault examinations approximately two dozen times. Defense counsel opted not to voir dire her on her qualifications and the court found her qualified as "`an expert in the area of examination of a person[,] conducting a sexual assault examination to determine whether there is evidence consistent with a sexual assault." Id. at 11.

After describing the protocol for a SART examination, Ruiz-Contreras described her activities vis-a-vis Randi in this case. Ruiz-Contreras obtained an oral history of the assault by completing a SART examination form and conducted a physical examination. Ruiz-Contreras testified that Randi told her several things, including that Glass "assaulted her at about 5:15 a.m. on a bed, that there was vaginal penetration by the penis while she was lying on her right side but that defendant did not ejaculate, that he performed masturbation on her and `oral copulation of [her] genitals.'" Id. at 12. She also testified as to other acts Randi described and to statements that Randi said Glass made. Ruiz-Contreras documented that Randi said she had not had intercourse within the last 72 hours, said her underwear was missing and that she had no shoes; Ruiz-Contreras did not document any unusual behavior such as appearing intoxicated or appearing unable to understand or comprehend. Ruiz-Contreras noted that Randi suffered periodic lower left quadrant abdominal pain and had a new bruise on her left forearm. Following the SART protocol, Ruiz-Contreras used a colposcope (i.e., an instrument that provides a magnified view (here, a magnification of 8 times the actual image)) to examine and photograph Randi's genital area. Ruiz-Contreras found redness or irritation over the labia minora and testified that skin cells actually had been taken away from that area, which acted as a protective covering to the vaginal opening. She also found two areas — at the 5 and 7 o'clock positions — where there were abrasions on the posterior fourchettee, which is the curved area near the vaginal opening that is closer to the rectum.

At the conclusion of the taking of the history and the physical examination, Ruiz-Contreras reached the opinion that Randi's injuries were "not consistent with a sexual event" but were "consistent with the history" of the sexual assault provided by Randi. Specifically, the nurse testified the abrasions to the posterior fourchette were "consistent with nonconsensual intercourse." After noting that, when intercourse is consensual, the normal human sexual response of increased vaginal lubrication, lengthening of the labia minora, and pelvic tilt allows the penis to enter the vaginal opening without irritation, she testified Randi's injuries were consistent with vaginal penetration without lubrication or pelvic tilt with the female lying on her side and vaginal entry from behind. Ruiz-Contreras added that, when the female is on her side with knees drawn up and insertion is from behind, the posterior fourchette's position is not accommodating to the penis. Ruiz-Contreras added that redness over the labia minora is not a common finding in consensual sex because the area would be lubricated and the redness "is consistent with the lack of lubrication." Ruiz-Contreras explained that the abrasions on the posterior fourchette would have caused pain when they occurred and that, if a penis continued to rub against the abrasions, that would continue to cause pain. Ruiz-Contreras said she would expect in a "consensual" sexual situation that the person experiencing such pain would ask her partner to stop or adjust his position. [¶] At the conclusion of her testimony, Ruiz-Contreras reiterated that the injuries she observed on Randi were "consistent with" the history that Randi had provided and with other [sic] the injuries of individuals who had told Ruiz-Contreras that they had been sexually assaulted.
Id. at 13-14.

The California Court of Appeal determined that Glass had not shown prejudice resulting from his trial counsel's failure to object to the expert's opinion that Randi's physical condition was inconsistent with consensual sex, assuming arguendo that defendant was correct that the SART nurse was not technically qualified to opine about that particular matter. Id. at 14. The court explained that, other than the single statement that the injuries were inconsistent with consensual sex, the remainder of her testimony was not problematic. The examination was a "medical examination intended to determine what happened" and "not merely a therapeutic tool invoked to treat a patient in counseling irrespective of what happened," thereby making inapposite the cases where the rape trauma syndrome was used as proof of rape. Id. at 15. The court considered Ruiz-Contreras' testimony to be like the analysis of any other wound or injury and did not require proof of reliability and general acceptance of a new scientific technique. And the court rejected the notion that Ruiz-Contreras needed to have conducted formal medical or statistical research in order to opine whether Randi's injuries were consistent with nonconsensual intercourse. The court also noted that Glass had failed to show that, if asked, Ruiz-Contreras wouldn't have explained that her training included texts and materials relating to medical findings. The court rejected the contentions that the jury didn't need help on the subject to which the expert testified and that the expert invaded the province of the jury. Id. at 17, 20.

Given our conclusion that the trial court had discretion to admit those portions of Ruiz-Contreras's testimony which were based upon the history related by Randi, her observations of Randi's injuries, her knowledge of human physiology, and her extensive practical experience and training in sexual assault diagnosis, examination, and treatment, defendant fails to establish that it is reasonably probable the determination with regard to count two would have been more favorable in the absence of the nurse's single comment that the injuries in question were inconsistent with consensual sex. Defendant does not claim the SART nurse's testimony was excludable in its entirety; instead, he admits Ruiz-Contreras was qualified to testify the injuries she observed were consistent with nonconsensual sex and that they would have caused pain, and the prosecutor did not focus upon the challenged testimony in argument; to the contrary she argued that the sixth person who independently corroborates Randi's testimony "is the nurse who in all of her training and experience observed bruising and injury that she tells you is consistent with someone who has had nonconsensual intercourse." (Emphasis added.) In view of the other evidence, including Randi's description of the violent abduction and sexual assault, and testimony from Randi's mother, her friend Donna Parker, and Donna's neighbor Frances Olsen, establishing that this was not a consensual encounter between defendant and Randi, we are convinced there is no reasonable probability the outcome would have been different had the SART nurse's challenged opinion that Randi's injuries were inconsistent with consensual sex not been admitted into evidence. [Citation.] In that regard, we note that the jury was instructed to carefully consider the qualifications and believability of an expert witness and that the "opinion is only as good as the facts and reasons on which it is based."
Id. at 18-19. The court also explained that defense counsel had elicited responses from the expert that were quite helpful to the defense. See id. at 19 n. 13. Finally, the appellate court discounted the declaration of trial counsel about the alleged absence of a trial strategy supporting his failure to object.

The California Court of Appeal's rejection of Glass' claim was not contrary to or an unreasonable application of clearly established federal law. The state appellate court correctly articulated the two-prong test for an ineffective assistance of counsel claim. That court cited People v. Price, 1 Cal.4th 324, 440 (Cal. 1991), which in turn cited Strickland v. Washington, 466 U.S. 668. See Cal. Ct. App. Opinion, p. 10; Early v. Packer, 123 S.Ct. 362, 365 (2002). And the state appellate court's determination that the prejudice prong had not been established by Glass was a reasonable one. The court determined that Glass had failed to show prejudice, a necessary element of an ineffective assistance claim. Like the state court, this court does not see prejudice resulting from counsel's failure to object to Ruiz-Contreras as an expert on whether the markings were inconsistent with consensual sex and from his failure to object when Ruiz-Contreras opined that the injuries were inconsistent with consensual sex and were consistent with Randi's description of the incident. There was substantial evidence from Randi as well as two other witnesses that Glass had forcibly taken her from her friend's home, showing the initial part of the hostile encounter. And the evidence of the rape was not strictly limited to Randi's testimony of the rape and Randi's earlier reports to the police and SART nurse of the rape. There was testimony by Randi's mother that she called (shortly before the rape) and that Randi was crying and signalled to her to call the police and to have her father come over to help her. Also, a policeman heard Randi crying when he approached the home. And the evidence from Ruiz-Contreras which Glass concedes was admissible included testimony that Randi had irritation/redness markings on her genital area consistent with nonconsensual sex. Defense counsel vigorously challenged the bases for Ruiz-Contreras' opinions and undercut the persuasiveness of her statement that the markings were not consistent with consensual sex. And the prosecutor's closing argument did not emphasize the presumed improper testimony.*fn1 Against this background, the admission of testimony from Ruiz-Contreras that the markings on genital area were not consistent with consensual sex did not result in any prejudice.

Finally, the court is unpersuaded that trial counsel's declaration saves the day for Glass.*fn2 Defense counsel's declaration was not an unequivocal embrace of Glass' argument: in essence he stated that if there was a meritorious basis for making the objections Glass contends he should have made, his failure to do so was not based on an intentional strategy. see Resp. Exh. F (Glass' state petition for writ of habeas corpus), at Exh. A ("Peak Decl."). Counsel stated that he was unaware of a meritorious basis for challenging Ruiz-Contreras "as `an expert in the area of conducting sexual assault examinations to evaluate whether there is evidence consistent with a sexual assault.'" Peak Decl., ¶ 3. Glass admits in his pleadings that the expert was qualified to do so, so that statement by counsel aids him not a bit. Counsel also stated that he was "unaware of a meritorious basis for challenging the specific opinions and related testimony rendered by Ruiz-Contreras at trial," id., but that is not an assertion that there were meritorious bases for challenge; rather, it was an assertion that if there were such bases he would have challenged her opinions and testimony at trial. Because counsel did not declare that he actually believed there were objections he failed to make — and only made the less persuasive statement that if there were objections he should have made he did not intend not to make them — his declaration is not particularly helpful to establish deficient performance. He would need to know the bases for a particular objection to intelligently determine whether he would or would not have made such an objection. His declaration does not persuade this court that he engaged in deficient performance. More importantly, his declaration cannot overcome the fundamental problem with Glass' claim, i.e., a failure to show prejudice resulting from counsel's actions.

The California Court of Appeal's determination that Glass had not established prejudice resulting from counsel's failure to object to Ruiz-Contreras' testimony was not contrary to or an unreasonable application of clearly established federal law. Glass is not entitled to the writ on his claim that he received ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights.

2. Admission Of Expert Witness Evidence

The state court's evidentiary ruling may be addressed in a federal habeas action only if it violated federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See id. at 920. In order to obtain habeas relief on the basis of an evidentiary error, a petitioner must show that the error was one of constitutional dimension and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). He would have to show that the error had "`a substantial and injurious effect' on the verdict.'" Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623).

The due process evidentiary error analysis is quite similar to the analysis of the ineffective assistance of counsel claim. Just as Glass has not shown any prejudice resulting from counsel's failure to object to Ruiz-Contreras' expertise or particular areas of testimony, he has not shown that the admission of her testimony had a substantial and injurious effect on the verdict, even assuming arguendo that the admission of the testimony violated his right to due process. As explained above, there was substantial evidence that she was taken forcibly from Donna Parker's house before the rape. The evidence of the rape was not strictly limited to Randi's testimony of the rape and Randi's earlier reports to the police and SART nurse of the rape. There was testimony by Randi's mother that she called (shortly before the rape) and that Randi signalled to her to call the police and to have her father come over to help her — corroborating her fearful and upset state before the rape while she was in the bedroom with Glass. Also, a policeman heard Randi crying when he approached the home — corroborating her fearful and upset state after the rape while she was in the bedroom with Glass. And the evidence from Ruiz-Contreras which Glass concedes was admissible included testimony that Randi had irritation/redness markings on her genital area consistent with nonconsensual sex. In light of this other evidence, the admission of testimony from Ruiz-Contreras that the markings on Randi's genital area were not consistent with consensual sex was harmless under the Brecht standard. Glass is not entitled the writ on this claim.

CONCLUSION

The petition for writ of habeas corpus is denied on the merits. The clerk shall close the file.

IT IS SO ORDERED.


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