FILED
NOT FOR PUBLICATION NOV 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL GOMEZ LOPEZ, No. 08-17319
Petitioner - Appellant, D.C. No. 2:03-cv-00543-JAM-
DAD
v.
D. L. RUNNELS and ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted October 17, 2012
San Francisco, California
Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.
Manuel Gomez Lopez appeals from the district court’s denial of his habeas
petition challenging his state conviction on two counts of making terrorist threats
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in violation of California Penal Code § 422 (1999). Lopez asserts that: (1) the
evidence was insufficient to support his conviction for making a terrorist threat
against his coworker; (2) the exclusion of evidence that his coworker had a history
of mental illness violated his Sixth Amendment right to confront witnesses; (3) the
erroneous admission of evidence of a prior bad act rendered his trial fundamentally
unfair; and (4) the ineffective assistance of his counsel denied him due process due
to cumulative errors. Lopez filed a timely notice of appeal. We review his request
for relief under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d).
1. The sufficiency of the evidence is determined “by whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under AEDPA a federal court may
only grant relief if the state court unreasonably applied the principles underlying
Jackson. See Juan H. v. Allen, 408 F.3d 1262, 1274 n.12 (9th Cir. 2005). Even if
Lopez’s statement “I’m going to get you” is ambiguous, his repetition of the threat,
his prior statements as to his dangerousness, and his subsequent statements were
more than sufficient to allow the jury to find him guilty of making a terrorist threat.
2. Although a defendant has a right under the Sixth Amendment to cross-
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examine a witness against him, this right is not unlimited. Davis v. Alaska, 415
U.S. 308, 316 (1974). The California Court of Appeal reasonably determined that
his coworker’s history of mental illness was not relevant to either her subjective
sustained fear from Lopez’s threat or the objective reasonableness of her fear. This
decision was not “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
Accordingly, Lopez has not shown that he is entitled to relief on his claim under
the Sixth Amendment.
3. We do not review questions of state evidence law, but consider “whether
the admission of the evidence so fatally infected the proceedings as to render them
fundamentally unfair.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.
1991). The trial court admitted Lopez’s former roommate’s testimony not as
evidence of propensity to commit a crime, but as rebutting Lopez’s testimony that
he was a “nice guy.” Lopez has not cited any Supreme Court case limiting the use
of such evidence in rebuttal, and, in Estelle v. McGuire, 502 U.S. 62, 75 n.5
(1991), the Court declined to create a constitutional barrier to admitting prior
crimes as evidence of propensity. Lopez has not carried his burden of showing that
the admission of his former roommate’s testimony denied him a fair trial.
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4. To prevail on a claim of ineffective assistance of counsel, Lopez must
show “that counsel’s representation fell below an objective standard of
reasonableness,” and was “prejudicial to the defense.” Strickland v. Washington,
466 U.S. 668, 688, 692 (1984). Lopez claimed that counsel was ineffective in
failing to: (a) reasonably investigate the law in seeking to admit evidence of his
coworker’s mental illness; (b) adequately defend against the admission of evidence
of a prior bad act; and (c) request that his manager’s testimony regarding Lopez’s
uncle be stricken or the jury admonished. None of the claims is persuasive. Trial
counsel vigorously sought to admit evidence of his coworker’s mental illness, and
there is no indication that any further investigation or argument would have made a
difference. Assuming that counsel could have more strenuously objected to the
admission of Lopez’s roommate’s testimony, Lopez has not presented any
constitutional argument mandating the exclusion of such evidence on rebuttal.
Finally, because the trial court sustained trial counsel’s objection to his manager’s
testimony, any further request to strike the testimony or for an admonishment
would have focused the jury’s attention on the unwanted testimony. Lopez has
failed carry his burden of showing ineffective assistance of trial counsel.
The district court’s denial of Lopez’s habeas petition is AFFIRMED.
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