Francisco Olivares v. J. Soto , 588 F. App'x 555 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO OLIVARES, No. 11-56634
Petitioner - Appellant, D.C. No. 2:06-cv-06207-DDP-
PLA
v. Central District of California, Los
Angeles
J. SOTO, Warden,
Respondent - Appellee. MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, United States District Judge, Presiding
Argued and Submitted November 19, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior
District Judge.**
Francisco Olivares appeals the dismissal of his petition under 28 U.S.C.
§ 2254 for relief from his California conviction. Reviewing de novo, we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
Olivares argues that the admission of extrajudicial statements by his non-
testifying co-defendant violated his rights under the Confrontation Clause.
“Because the state court has already established that a trial error occurred and the
constitutional dimension of the error turns entirely on the issue of prejudice,” we
review de novo for harmless error. Deck v. Jenkins, 768 F.3d 1015, 1022 (9th Cir.
2014). Because the statements did not link Olivares to the crime or to the vehicle
used in the commission of the crime, and given the other evidence implicating
Olivares in the shooting and the lack of importance placed on the statement by the
prosecution, the trial court’s error in admitting the statements did not have a
“substantial and injurious effect or influence in determining the jury’s verdict,”
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), and we are without “grave doubt
as to the harmlessness of [the] error,” Deck, 768 F.3d at 1022 (quoting O’Neal v.
McAninch, 513 U.S. 432, 437 (1995)).
The district court was also correct in denying Olivares’s claims of
ineffective assistance of counsel. First, for the same reasons his Confrontation
Clause claim fails under the harmless error standard, Olivares cannot show that he
was prejudiced by his trial counsel’s failure to object to the admission of his
codefendant’s statements. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Second, in light of the undisputed evidence that Olivares was a Ford Maravilla
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gang member known as “Go-Go” and his failure to identify any witnesses who
were willing to testify at the time of trial about the existence of other gang
members with that moniker, Olivares has failed to show that counsel’s concession
that Olivares was a gang member named “Go-Go” was not the product of sound
strategy. See Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008) (citing
Strickland, 466 U.S. at 688–89). Finally, counsel’s decision not to present an alibi
defense—based on a witness who asserted on the day he was scheduled to testify
that he could no longer recall the exact time that Olivares left his property and was
reluctant to testify, and the proposed testimony of Olivares’s wife, which would
have done nothing to establish an alibi—was not unreasonable under the
circumstances of the case.
AFFIRMED.
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