NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH CORNETT, No. 13-16174
Petitioner - Appellant, D.C. No. 4:11-cv-04262-PJH
v.
MEMORANDUM*
DOMINGO URIBE, JR., Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted December 10, 2014
Submission Vacated December 11, 2014
Resubmitted June 23, 2015
San Francisco, California
Before: FISHER and PAEZ, Circuit Judges, and QUIST, District Judge.**
Joseph Cornett appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition. We have jurisdiction under 28 U.S.C. § 1291, we review de novo,
see Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
1. The California Court of Appeal reasonably applied clearly established
federal law when it held the trial court’s failure to give a requested no-adverse-
inference instruction, in violation of Cornett’s constitutional rights under Carter v.
Kentucky, 450 U.S. 288 (1981), was nonstructural error. The court of appeal’s
conclusion was consistent with the decisions of this and other courts, see United
States v. Soto, 519 F.3d 927, 930 (9th Cir. 2008); Lewis v. Pinchak, 348 F.3d 355,
358 (3d Cir. 2003); United States v. Burgess, 175 F.3d 1261, 1266-67 (11th Cir.
1999); United States v. Brand, 80 F.3d 560, 568 (1st Cir. 1996); Finney v.
Rothgerber, 751 F.2d 858, 864 (6th Cir. 1985); Richardson v. Lucas, 741 F.2d 753,
754-55 (5th Cir. 1984), and was reasonable in light of Chapman v. California, 386
U.S. 18, 24 (1967), in which the Supreme Court held Griffin error is nonstructural.
2. The district court also properly concluded the Carter error was not
prejudicial under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under Davis
v. Ayala, 135 S. Ct. 2187 (2015), we may grant relief only if the state court’s
harmlessness determination under Chapman “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded agreement.” Id. at 2199 (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)) (internal quotation marks omitted). That standard is not
satisfied here.
2
First, there was strong evidence of guilt, including Demaurie Williams’
statement to the police, the gunshot residue on Cornett’s hands and testimony by
the victim and three of his friends implicating Cornett as the shooter. Anthony
(Jordan) Murphy, the victim, thought the gunshot came from the front seat. Deon
Glasper saw the driver making threats and flashing a gun. Shelby Green and Paul
Smith both identified the driver as the shooter. Although there were
inconsistencies in the testimony, the witnesses never wavered on their crucial
testimony linking the driver to the gun and the shooting. Second, neither the
prosecution nor the trial court commented on Cornett’s failure to testify. Each side
referred to the other’s failure to call logical witnesses, but neither party drew the
jury’s attention to Cornett’s decision not to take the stand. Third, Cornett’s trial
counsel presented a poor defense, failing to exploit the potential weaknesses in the
prosecution’s case. In sum, because we cannot say the California Court of Appeal
applied Chapman’s harmless error standard in an objectively unreasonable manner,
we affirm the denial of habeas relief. See id. at 2198.
AFFIRMED.
3