NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MISAEL QUINTANA, No. 14-17202
Petitioner - Appellant, D.C. No. 3:13-cv-05819-CRB
v.
MEMORANDUM*
CONNIE GIPSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Argued and Submitted October 21, 2015
Stanford, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
California state prisoner Misael Quintana appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 petition for habeas corpus. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Quintana seeks relief from his in absentia conviction of aggravated sexual
assault of a child under fourteen, in violation of California Penal Code section 269,
and four counts of lewd or lascivious conduct on a child by duress, in violation of
California Penal Code section 288(b)(1). Quintana contends that insufficient
evidence supported the duress finding underlying his convictions, and that his
counsel rendered ineffective assistance.1
The prosecution presented evidence that Quintana undressed his daughter
and induced sexual acts with “a direct or implied threat of . . . retribution” if she
reported the abuse, People v. Cochran, 126 Cal. Rptr. 2d 416, 420 (Ct. App.
2002)—specifically, by threatening his daughter with the loss of visitation and
physical punishment by her mother. Viewing this evidence in the light most
favorable to the prosecution, it was not objectively unreasonable for the California
Court of Appeal to conclude that there was sufficient evidence from which a
rational juror could infer duress and convict Quintana. See 28 U.S.C. § 2254;
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Quintana also alleges he received ineffective assistance because counsel
failed to obtain and introduce (1) a psychological examination showing that
1
We decline to expand the certificate of appealability to include Quintana’s cumulative
prejudice argument because Quintana has failed to make a “substantial showing of the denial of
a constitutional right” with respect to this claim. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,
529 U.S. 473, 484 (2000).
2
Quintana’s personality did not fit the profile of a child molester, (2) favorable
character witness testimony, or (3) a polygraph examination. Even if we assume
that counsel’s performance fell below the constitutional level of effectiveness, the
California court’s conclusion that this evidence was not reasonably likely to have
changed the outcome of Quintana’s trial was neither “contrary to” nor an
“unreasonable application of” Strickland v. Washington, 466 U.S. 668 (1984), nor
was it based on an “unreasonable determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d).
The district court’s denial of Quintana’s petition for habeas corpus is
therefore AFFIRMED.
3