Miguel Garcia, Jr. v. R. Horel

FILED
NOT FOR PUBLICATION DEC 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIGUEL GARCIA, Jr., No. 09-17848
Petitioner - Appellant, D.C. No. 1:07-CV-01105-VRW
v.
MEMORANDUM *
ROBERT A. HOREL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Vaughn R. Walker, Presiding
Argued and Submitted December 5, 2012
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
A California jury convicted Miguel Garcia, Jr. of first-degree murder and
unlawful firearm possession. After the district court denied his federal habeas
petition, we granted him a certificate of appealability (“COA”) on three issues. 28
U.S.C. § 2253. We consider them in turn, and then address his uncertified issue.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
Garcia’s trial counsel stipulated to, and did not request a limiting instruction
in connection with, certain testimony by prosecution witness Robert Zapien. On
redirect examination Zapien stated that, while the two men were cellmates, Garcia
had callously recounted having earlier shot a child. Garcia asserts that this violated
his Sixth Amendment right to effective assistance of counsel and his right to due
process of law.
A
To prevail on an ineffective assistance claim, Garcia “must demonstrate a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Runningeagle v. Ryan, 686 F.3d 758, 775
(9th Cir. 2012) (citation and internal quotation marks omitted). Because AEDPA
applies, that “likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011). The jury was
instructed to view Zapien’s testimony “with caution and close scrutiny.” There
was substantial other evidence of Garcia’s guilt, including statements by another
witness to authorities that Garcia confessed to the killing. Had the challenged
testimony been excluded, there is not a substantial probability that the verdict
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would have been different. See Ben-Sholom v. Ayers, 674 F.3d 1095, 1101–03 (9th
Cir. 2012).
B
Garcia’s claim that Zapien’s testimony was impermissible character
evidence and inflammatory such that it violates the Due Process Clause also fails.
In Jammal v. Van de Kamp, we reiterated that the “issue is not whether
introduction of [the evidence] violated state law evidentiary principles, but whether
the trial court committed an error which rendered the trial so arbitrary and
fundamentally unfair that it violated federal due process.” 926 F.2d 918, 920 (9th
Cir. 1991) (alteration in original) (quoting Reiger v. Christensen, 789 F.2d 1425,
1430 (9th Cir. 1986)). As the state court found, the prosecution introduced the
challenged testimony to rehabilitate Zapien, whom Garcia had impeached as
having a self-interested motive for testifying. Garcia has not shown that the state
court’s resolution of this issue “involved an unreasonable application of,” or “was
contrary to” federal law clearly established in the holdings of the Supreme Court.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting 28 U.S.C. §
2254(d)(1)).
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II
In his third certified issue, Garcia claims that the failure of the trial court to
administer a California jury instruction on accomplice testimony abridged his due
process rights. He cannot demonstrate that this alleged error, held harmless by the
state court, “so infected the entire trial that the resulting conviction violates due
process.” Clarke v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting Estelle v.
McGuire, 502 U.S. 62, 72 (1991)).
III
We decline to expand the COA to include whether the exclusion of
unspecified evidence that a third-party had a motive to commit the murder violated
Garcia’s constitutional right to present a complete defense. See Holmes v. South
Carolina, 547 U.S. 319, 324–25 (2006). The application of the California
evidentiary rule calling for an offer of proof to this case neither contradicts “the
governing law set forth in Supreme Court cases,” nor “confronts a set of facts
materially indistinguishable from those at issue in a decision of the Supreme
Court.” Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004).
AFFIRMED.
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