FILED
NOT FOR PUBLICATION OCT 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONSTANTINO CARRERA, No. 08-99007
Petitioner - Appellant, D.C. No. 1:90-CV-00478-AWI
v.
MEMORANDUM *
ROBERT L. AYERS, Jr., Warden of the
California State Prison at San Quentin,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted June 14, 2010
San Francisco, California
Before: O’SCANNLAIN, TASHIMA, and BEA, Circuit Judges.
Constantino Carrera appeals the district court’s denial of his petition for a
writ of habeas corpus. Carrera alleges multiple trial errors that entitle him to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas relief.1 We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253 and
affirm on the issues addressed herein.2
This court reviews de novo a district court’s decision to deny a petition for a
writ of habeas corpus and reviews for clear error a district court’s findings of fact.
Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). This court cannot grant
habeas relief unless a trial error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Under this standard, habeas relief cannot be granted unless there is “a reasonable
probability” that the jury would have reached a different verdict absent the
constitutional error. Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006).
I. Inconsistent Testimony
Carrera was not prejudiced by any inconsistencies between Miguel
Santana’s testimony at Ramiro Ruiz’s trial and Santana’s testimony at Carrera’s
subsequent trial. Thus, Carrera cannot parlay these alleged inconsistencies into
constitutional claims. Initially, only two of the alleged inconsistencies were in fact
1
Because the parties are familiar with the facts, we recite them only as
necessary.
2
In an opinion filed concurrently with this memorandum disposition, we
affirm the denial of Carrera’s Strickland claim based on defense counsel’s failure
to make a Wheeler motion.
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inconsistent: (1) whether it was Ruiz or Carrera who asked Santana if he had the
“guts to kill” on the night of the murders, and (2) whether it was Ruiz or Carrera
who wore grey Trax sneakers on the night of the murders.
The testimony relating to whether Santana learned about the killings from
Carrera, Ruiz, or both of them—the third alleged inconsistency—was not
inconsistent. Thus, no hearsay exception applied, and the trial court did not err
when it instructed defense counsel not to cross-examine Santana about the
testimony he gave at Ruiz’s trial. Further, because Santana’s testimony was based
on statements made by Carrera, rather than Ruiz, there was no violation of the
Confrontation Clause.
The fourth alleged inconsistency—whether it was Carrera or Ruiz who
obtained a larger knife during the attack—was not inconsistent. At the trials of
both Ruiz and Carrera, Santana testified that Ruiz’s knife broke and Ruiz went into
the kitchen to get a bigger knife. The prosecutor in Carrera’s trial argued during
his closing that it was Carrera who got the bigger knife. Although this may be
evidence of prosecutorial misconduct, it does not render Santana’s evidence
inconsistent.
The testimony regarding the “guts to kill” question related only to whether
Carrera intended to kill the victims, not to whether he had intent to commit
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robbery. However, Carrera could have been found guilty of felony murder even if
he intended only to rob the motel. Thus, any inconsistency was harmless. The
inconsistency regarding who wore the grey Trax sneakers was harmless in light of
the other overwhelming evidence.3
Finally, even if all of the alleged inconsistencies had been fully presented to
the jury, there is no reasonable probability that the jury would have reached a
different verdict. Evidence of Carrera’s participation in the robbery was
overwhelming. Therefore, Carrera was not prejudiced by defense counsel’s failure
to conduct more extensive cross-examination with respect to Santana’s inconsistent
testimony. Nor was Carrera prejudiced by the prosecutor’s objection to defense
counsel’s attempt to cross-examine Santana or by the prosecutor’s failure to correct
the inconsistencies in Santana’s testimony. Thus, Carrera is not entitled to habeas
relief based on this ground.
II. Trial Court’s Jury Instructions
Carrera was not prejudiced by the trial court’s failure to instruct the jury (1)
that a robbery is completed once the perpetrator reaches a place of temporary
3
Except for the testimony relating to whether Santana learned about the
killings from Carrera, Ruiz, or both of them, the trial court placed no limitations on
defense counsel’s ability to cross-examine Santana regarding the alleged
inconsistencies.
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safety, and (2) that a person cannot aid and abet a felony murder if his participation
in the felony began after the murder occurred. Carrera correctly contends that,
absent these instructions, it was possible for the jury to convict him of felony
murder based only on his participation in the crimes as an accessory after the
fact—when he helped destroy the evidence the day after the robbery and murders.
However, based on the evidence presented at trial, there is not a “reasonable
probability” the jury convicted Carrera merely because he helped destroy evidence
the day after the murders. See Clark, 450 F.3d at 916. Correct jury instructions
would not have changed the outcome of this case given the overwhelming evidence
that Carrera participated in the robbery—witnesses testified Ruiz and Carrera were
absent from a party during the time of the murders, witnesses saw a spot of blood
on Carrera’s pants, and witnesses testified Carrera was wearing sneakers whose
soles matched bloody footprints left at the murder scene. Thus, Carrera is not
entitled to habeas relief based on this ground.
III. Ineffective Assistance of Counsel
Carrera was not denied effective assistance of counsel based on defense
counsel’s personal and financial difficulties. Under Strickland v. Washington, 466
U.S. 668 (1984), to establish ineffective assistance of counsel, a defendant must
prove: (1) deficient performance—that is, his counsel’s performance “fell below an
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objective standard of reasonableness,” id. at 687–88; and (2) prejudice—that is, “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 694. Defense counsel had declared
bankruptcy about a year before she was appointed counsel for Carrera. Further,
not long after she was appointed, her husband shot her during a drunken argument
and she filed for divorce. Carrera provides a list of errors he contends would not
have occurred had defense counsel familiarized herself more fully with the case.
Despite these personal and financial difficulties, Carrera fails to show that any
error made by defense counsel prejudiced Carrera. Thus, Carrera is not entitled to
habeas relief based on this ground.
AFFIRMED.
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