Jesus Valencia v. Anthony Hedgpeth , 478 F. App'x 366 ( 2012 )

FILED
NOT FOR PUBLICATION APR 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS VALENCIA, No. 10-17092
Petitioner - Appellant, D.C. No. 3:08-cv-01144-MHP
v.
MEMORANDUM *
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted April 16, 2012
San Francisco, California
Before: REINHARDT and MURGUIA, Circuit Judges, and EZRA, District
Judge.**
California state prisoner Jesus Valencia appeals the district court’s denial of
his petition for a writ of habeas corpus. Valencia was convicted of two counts of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.
continuous sexual abuse and two counts of forcible lewd conduct for the sexual
molestation of his three younger sisters. He contends that he was denied the
effective assistance of counsel when his attorney failed to object to the admission
of his confession, which he claims was coerced, and to the admission of certain
“red stain” evidence that the prosecution employed to allege during its closing that
Valencia had raped his 14-year old sister. Because the California Court of Appeal
denied Valencia’s claims on the merits, the Antiterrorism and Effective Death
Penalty Act of 1996 precludes federal habeas relief unless its decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Valencia does not contend that the state court’s decision was
“contrary to” clearly established law, only that it was an “unreasonable
application” of Supreme Court precedent.
The state court determined that, because his confession was not coerced,
Valencia was not deprived of the effective assistance of counsel when his attorney
failed to object to its admission. This conclusion did not represent an unreasonable
application of clearly established law. The detectives who elicited Valencia’s
confession made a number of statements that approached, and may have crossed,
the line of propriety. It was not, however, unreasonable for the state court to
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conclude that, considering the “totality of all the surrounding circumstances” –
including the facts that Valencia came voluntarily to the interview and was told
that he could leave at any time – his will was not overborne. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973); see Brown v. Horell, 644 F.3d 969, 981-82
(9th Cir. 2011) (holding not to be unreasonable the state court’s determination that
a habeas petitioner had not been coerced by a polygraph examiner’s statements that
he would need to tell the truth in order to see his unborn child).
Likewise, the state court’s determination that Valencia was not deprived of
the effective assistance of counsel when his attorney failed to object to the
admission of the “red stain” evidence was not unreasonable. The state court held
that Valencia had not established a “reasonable probability” that the result in his
trial would have been different but for his counsel’s purported error. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). The prosecution’s suggestion
that the jury should convict Valencia because uncharged, unprovable and highly
inflammatory conduct showed that “a whole lot more is going on here” was
undoubtedly improper. See Sechrest v. Ignacio, 549 F.3d 789, 809 (9th Cir. 2008).
There was, however, also extremely inflammatory evidence of other conduct by
petitioner before the jury. Moreover, because Valencia had confessed to one act of
lewd conduct, there was significant evidence from which the jury could infer that
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he had the requisite lascivious intent with respect to all three of his sisters. The
state court’s conclusion that he was not prejudiced when the prosecution made
these improper allegations during its closing argument was therefore not
objectively unreasonable. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.”) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
AFFIRMED.
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