David Flores v. David B. Long ( 2014 )

FILED
NOT FOR PUBLICATION MAR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID FLORES, No. 11-55235
Petitioner - Appellant, D.C. No. 2:06-cv-00097-JVS-FFM
v.
MEMORANDUM*
DAVID B. LONG,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted March 4, 2014
Pasadena, California
Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the denial
of David Flores’s 28 U.S.C. § 2254 habeas petition. We review the district court’s
denial of the habeas petition de novo, Maciel v. Cate, 731 F.3d 928, 932 (9th Cir.
2013), and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. To the extent Flores invites us to second-guess the California Court of
Appeal’s interpretation of California law, we decline the invitation, because “it is
not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The
California Court of Appeal’s decision affirming the trial court’s refusal to give the
jury the duress instruction was not unreasonable. See 28 U.S.C. § 2254(d). The
record supports the California Court of Appeal’s factual determination that there
was no evidence Flores committed the crimes under duress. Omission of a duress
instruction could therefore not have “so infected the entire trial that the resulting
conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).
2. Flores’s argument that the trial court misapplied California rules of
evidence when it admitted a hearsay statement “fall[s] outside the scope of federal
habeas relief, which is designed only to remedy violations of federal law.” Winzer
v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007). Admission of the non-testimonial
statement did not implicate the Confrontation Clause. See Crawford v.
Washington, 541 U.S. 36, 68 (2004).
3. Flores is not entitled to relief on his ineffective assistance claim, because
“there is [a] reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). The decision to call
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Marcos Campos or William Simon as witnesses could have hurt Flores’s defense
and therefore falls within the “wide latitude counsel must have in making tactical
decisions.” Strickland v. Washington, 466 U.S. 668, 689 (1984). And, even
assuming trial counsel was deficient for failing to call Benjamin Flores, Flores
failed to show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
Flores also faults trial counsel for failing to call expert witnesses and
speculates that they would have supported his defense. “Such speculation,
however, is insufficient to establish prejudice.” Wildman v. Johnson, 261 F.3d
832, 839 (9th Cir. 2001).
The judgment of the district court is AFFIRMED.
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