FILED
NOT FOR PUBLICATION SEP 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH MARIO ARREDONDO, Jr., No. 11-57094
Petitioner - Appellant, D.C. No. 5:10-cv-01115-CAS-
MRW
v.
GARY SANDOR, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted August 26, 2014**
Pasadena, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and GLEASON,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
Petitioner Joseph Mario Arredondo, Jr., appeals from the district court’s
denial of his application for a writ of habeas corpus. After trial in California, Mr.
Arredondo was convicted of several counts of committing sexual acts with minors,
but he asserts on collateral review that three defects in his state-court proceedings
warrant relief from that judgment. The Antiterrorism and Effective Death Penalty
Act of 1994 (AEDPA), 28 U.S.C. § 2241 et seq., strictly circumscribes our
jurisdiction to grant a writ of habeas corpus in this case.
First, Mr. Arredondo contends that his trial attorney’s allegedly incompetent
performance deprived him of the effective assistance of counsel. To demonstrate
constitutionally defective representation, the criminal defendant must show: (1)
that his counsel’s performance failed to satisfy an “objective standard of
reasonableness”; and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The
California Court of Appeal, which issued the last reasoned decision on the merits,
acknowledged that much of trial counsel’s allegedly deficient conduct was bizarre
and “needlessly embarrassing,” but nevertheless discerned no prejudice because of
“overwhelming” evidence of guilt. The accusers, although reluctant at first to
divulge the details of their sexual encounters with Mr. Arredondo, provided
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detailed and largely consistent accounts, corroborated in various specifics by motel
receipts and other circumstantial evidence, as well as Mr. Arredondo’s own
statements. Indeed, even the trial court—which, by misapplying Strickland,
granted Mr. Arredondo’s post-verdict motion for a new trial on the basis of
counsel’s ineffective assistance—observed that the result of the trial would not
likely have been different if Mr. Arredondo had able representation. We cannot
therefore conclude that the California court’s determination that Mr. Arredondo
suffered no prejudice from the alleged errors of trial counsel is unreasonable.
Second, Mr. Arredondo argues that the prosecutor committed misconduct by
encroaching on allegedly privileged and otherwise inappropriate subjects during
his own and his wife’s testimony. Prosecutorial misconduct, in order to justify
relief, must have “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986). The California Court of Appeal exhaustively reviewed the trial transcripts
and found all claimed instances of impropriety fell below the legal threshold for
prosecutorial misconduct. In any event, any actual misconduct on the basis that
Mr. Arredondo has identified would scarcely have caused a “substantial and
injurious effect or influence” on the verdict given the volume of evidence against
him. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
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Third, Mr. Arredondo arraigns the trial court for erroneously instructing the
jury about his purportedly late disclosure of witnesses and evidence. Under Estelle
v. McGuire, instructional error under state law does not amount to a constitutional
deprivation unless it “so infected the entire trial that the resulting conviction
violates due process.” 502 U.S. 62, 72 (1991). The California Court of Appeal
noted that the trial court most likely erred by giving the jury a modified version of
CALJIC 2.28, informing the jurors of Mr. Arredondo’s allegedly untimely
disclosures and leaving it to their judgment whether and to what extent to accord
significance to such delay. Nevertheless, the state court concluded that the
abundant evidence of guilt vitiates any prejudice that Mr. Arredondo could claim
to have suffered thereby. For such reason, Mr. Arredondo cannot demonstrate that
the California court’s ruling unreasonably applied, or was contrary to, clearly
established Federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d).
AFFIRMED.
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