Mendoza v. Stewart

MEMORANDUM ^**

Arizona state prisoner James Castillo Mendoza appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging a burglary conviction. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review the district court’s denial of Mendoza’s habeas petition de novo, see Turner v. Calderon, 281 F.3d 851, 864 (9th Cir.2002), and we affirm.

Mendoza contends that he was prejudiced by the admission of evidence that the victims had been threatened prior to testifying. A habeas petition may not be granted unless the alleged constitutional error “‘had a substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted). We conclude that although the admission of evidence of threats was improper, it did not have a substantial and injurious effect on the verdict, in light of the overwhelming evidence of guilt including that Mendoza was confronted and restrained by the victims exiting their home and their property was found in his car. See Bains v. Cambra, 204 F.3d 964, 973-74, 977-78 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000) (holding that although admission of threats was in error and prosecutor’s closing arguments violated defendant’s constitutional rights, these errors did not merit habeas relief in light of the overwhelming evidence showing defendant’s guilt).

Because Mendoza was not prejudiced by the testimony about threats, we reject his claim that the prosecutor committed prejudicial misconduct by eliciting that testimony. See Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.1995) (holding that improper statements by the prosecutor were not grounds for habeas relief because the prosecutor’s conduct did not affect the jury’s verdict). Likewise, we reject Mendoza’s claim that he was prejudiced by his counsel’s failure to object to the admission of that evidence. See Laboa v. Calderon, 224 F.3d 972, 980-981 (9th Cir.2000) (stating that because other evidence showed defendant’s guilt, defendant’s counsel’s failure to have evidence suppressed was not prejudicial and therefore defendant’s counsel’s assistance was not ineffective).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.