NOT FOR PUBLICATION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
ERNESTO MEJORADO, No. 13-55200
Petitioner - Appellant, D.C. No. 2:12-cv-02402-R-VBK
v.
MEMORANDUM*
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 20, 2015
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,** District Judge.
Ernesto Mejorado, a California state court prisoner, appeals from the district
court’s denial of his petition for a writ of habeas corpus. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
pursuant to 28 U.S.C. § 1291, and we affirm. As the parties are familiar with the
facts, we do not recount them here.
1. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), it
was not an unreasonable application of Chapman v. California, 386 U.S. 18, 24
(1967), for the California Court of Appeal to hold that any error in excluding
Adan’s testimony was “harmless beyond a reasonable doubt.”1 A state court’s
harmlessness determination is considered a decision on the merits entitled to
AEDPA deference, Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015) (citation
omitted), and “a federal court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable,” id. at 2199 (emphasis in
original) (citation omitted).
The California Court of Appeal gave three reasons for its harmlessness
determination: (1) the jury would not have believed Adan’s testimony; (2) the
testimony was essentially cumulative; and (3) overwhelming evidence established
Mejorado’s guilt. First, it was not unreasonable for the California Court of Appeal
to find that the jury would not have believed Adan’s testimony. When it refused to
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Because the California Court of Appeal’s decision that any error was
harmless was not an unreasonable application of Chapman, we may not review de
novo the question of whether the trial court’s decision to exclude the relevant
portion of Adan Lopez’s testimony was constitutional error.
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allow Adan to testify, the trial court reasoned that Adan was biased in favor of
Mejorado. The state appellate court affirmed that finding, and it is presumed
correct on appeal, 28 U.S.C. § 2254(e)(1). Where, as here, evidence is deemed
untrustworthy, the exclusion of that evidence is unlikely to be prejudicial. See,
e.g., United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976). Further, unless
testimony is “trustworthy,” its exclusion does not implicate a defendant’s right to
present a defense. See Cudjo v. Ayers, 698 F.3d 752, 754-55 (9th Cir. 2012).
Second, it was not unreasonable for the California Court of Appeal to find
that the excluded testimony was cumulative. Adan was allowed to testify that after
Flores was killed, Ramirez said that he killed Flores. Neither the exclusion nor the
admission of cumulative evidence is likely to cause substantial prejudice. See e.g.,
Wong v. Belmontes, 558 U.S. 15, 22-23 (2009); Jackson v. Brown, 513 F.3d 1057,
1084-85 (9th Cir. 2008).
Finally, it was not unreasonable for the California Court of Appeal to find
that there was overwhelming evidence that established Mejorado’s guilt as the
shooter or as an aider and abettor. Here, substantial circumstantial evidence
connected Mejorado to the murder: Mejorado and Ramirez were seen taking the
tires off Flores’s car the following day, Mejorado had burn marks on his face after
Flores’s car was set on fire, Mejorado knew about Flores’s recent $18,000 tax
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refund, David Lopez testified that Mejorado said that “we” killed somebody, and,
after the murder, Mejorado and Ramirez would not let Sanchez go anywhere
without their authorization. Where the evidence unaffected by the alleged trial
error overwhelmingly points toward a petitioner’s guilt, the error will be deemed
harmless. See Cook v. Schriro, 538 F.3d 1000, 1021 (9th Cir. 2008). Indeed, an
error may be overlooked as harmless even if the properly admitted evidence was
“weighty” but “not overwhelming.” Brecht v. Abrahamson, 507 U.S. 619, 639
(1993).
As a fairminded jurist could reasonably agree with any of the California
Court of Appeal’s three reasons for concluding that the exclusion of Adan’s
testimony was harmless, Mejorado is not entitled to habeas relief.
2. The California Court of Appeal’s determination that there was sufficient
evidence to support Mejorado’s conviction for the murders of Sanchez and San
Miguel was not an unreasonable application of Jackson v. Virginia, 443 U.S. 307
(1979). “[O]n habeas review, a federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge” unless “the state court
decision was objectively unreasonable.” Coleman v. Johnson, 132 S. Ct. 2060,
2062 (2012) (per curiam) (internal quotation marks and citations omitted). The
California Court of Appeal listed the evidence against Mejorado: (1) Mejorado and
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Ramirez committed the Flores murder, and the evidence showed that Sanchez and
San Miguel were killed because they “knew too much”; (2) Mejorado and Ramirez
restricted Sanchez’s freedom of movement after the Flores murder; (3) Mejorado
was present the night San Miguel and Sanchez were murdered; (4) Mejorado
participated in cleaning up the crime scene, and tried to convince others to go to
Mexico with him and Ramirez; (5) Mejorado gave a false name and date of birth to
police when arrested; and (6) in a taped jailhouse conversation, Mejorado tried to
fabricate a false alibi. It was not objectively unreasonable for the court to conclude
there was sufficient evidence for a rational jury to find Mejorado guilty of the
murders of Sanchez and San Miguel.
3. The California Court of Appeal’s determination that there was ample
evidence that the Sanchez and San Miguel murders were committed in association
with the gang, or to benefit the gang by keeping gang members out of jail for the
Flores murder, sending a message to other witnesses, enhancing the gang’s
reputation, and creating fear and intimidation in the community, was not an
unreasonable application of Jackson v. Virginia. The court reasonably concluded
that a rational trier of fact could have found the necessary elements of the
enhancement. See Emery v. Clark, 643 F.3d 1210, 1216 (9th Cir. 2011) (per
curiam).
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AFFIRMED.
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