FILED
NOT FOR PUBLICATION AUG 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO MERINO, No. 14-16550
Petitioner - Appellant, D.C. No. 4:08-cv-03231-CW
v.
MEMORANDUM*
MARION SPEARMAN,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Senior District Judge, Presiding
Submitted August 13, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
Appellant Mario Merino appeals the district court’s denial of his petition for
writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),
and we affirm.
*
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).
We review a district court’s denial of a habeas petition de novo. Musladin v.
Lamarque, 555 F.3d 830, 835 (9th Cir. 2009). A habeas petition challenging a
state court conviction may be granted only if the last reasoned state court decision
(1) was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or (2) “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
Merino was convicted of aggravated sexual assault of a child under 14 and
10 or more years younger than him. He argues that the trial court violated his due
process rights under Doyle v. Ohio, 426 U.S. 610 (1976), by permitting the
prosecution to question him and to comment on his invocation of his right to
remain silent in a police interview after receiving his Miranda warnings. He
argues the court further violated Doyle by instructing the jury that it may find
instances in which Merino was accused of the charged crime and failed to reply to
the accusation as “indicating an admission that the accusation thus made was true.”
It is plausible that Merino’s Doyle rights were violated by the trial court’s
instruction to the jury, as well as by the prosecution’s questions, which arguably
referred both to Merino’s voluntary post-Miranda comments to the detective and to
his later invocation of his right to silence. However, we cannot conclude that it
was unreasonable for the California Court of Appeal to hold that any such violation
was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). For one, as
the district court noted, defense counsel objected several times to the challenged
line of questioning, and many of these objections were sustained. See Greer v.
Miller, 483 U.S. 756, 763-64 (1987) (holding no Doyle violation occurs if the trial
court sustains a timely objection to the allegedly improper question and instructs
the jury to disregard that question).
We generally consider three factors when weighing the harmlessness of a
possible Doyle violation: “(1) the extent of [the] comments . . ., (2) whether an
inference of guilt from silence was stressed to the jury, and (3) the extent of other
evidence suggesting [the] defendant’s guilt.” Hurd v. Terhune, 619 F.3d 1080,
1090 (9th Cir. 2010) (quoting United States v. Velarde Gomez, 269 F.3d 1023,
1034-35 (9th Cir. 2001) (en banc)) (alterations in original). These factors weigh
against Merino. The problematic questions appear to be directed primarily towards
the proper purpose of examining Merino’s immediate response to the detective’s
accusing him of child molestation, prior to Merino’s invoking his Miranda rights.
Any questions or comments on Merino’s conduct during the police interview
constituted only a portion of the prosecution’s argument against Merino’s
credibility, which itself was only a piece of a broader case that also included
testimony from Merino’s wife and the victim of the crime.
AFFIRMED.