Olivares v. Soto, 121214 FED9, 11-56634

Docket Nº:11-56634
Party Name:FRANCISCO OLIVARES, Petitioner-Appellant, v. J. SOTO, Warden, Respondent-Appellee.
Judge Panel:Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior District Judge.
Case Date:December 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

FRANCISCO OLIVARES, Petitioner-Appellant,


J. SOTO, Warden, Respondent-Appellee.

No. 11-56634

United States Court of Appeals, Ninth Circuit

December 12, 2014


          Argued and Submitted November 19, 2014 Pasadena, California

         Appeal from the United States District Court for the Central District of California Dean D. Pregerson, United States District Judge, Presiding Central District of California, Los Angeles D.C. No. 2:06-cv-06207-DDP-PLA

          Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior District Judge.[**]

          MEMORANDUM [*]

         Francisco Olivares appeals the dismissal of his petition under 28 U.S.C. § 2254 for relief from his California conviction. Reviewing de novo, we affirm.

         Olivares argues that the admission of extrajudicial statements by his non-testifying co-defendant violated his rights under the Confrontation Clause. "Because the state court has already established that a trial error occurred and the constitutional dimension of the error turns entirely on the issue of prejudice, " we review de novo for harmless error. Deck v. Jenkins, 768 F.3d 1015, 1022 (9th Cir. 2014). Because the statements did not link Olivares to the crime or to the vehicle used in the commission of the crime, and given the other evidence implicating Olivares in the shooting and the lack of importance placed on the statement by the prosecution, the trial court's error in admitting the statements did not have a "substantial and injurious effect or influence in determining the jury's verdict, " Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), and we are without "grave doubt as to the harmlessness of [the] error, " Deck, 768 F.3d at 1022 (quoting O'Neal v. McAninch, 513 U.S. 432, 437 (1995)).

         The district court was also correct in denying Olivares's claims of ineffective assistance of counsel. First, for the same reasons his Confrontation Clause claim fails under the harmless error standard, Olivares cannot show that he was prejudiced by his trial counsel's failure to object to the admission of his codefendant's statements. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, in light of the undisputed evidence that Olivares was a Ford Maravilla gang member known as "Go-Go" and his failure to identify any witnesses who were willing to testify at the time of trial about the existence of other gang members...

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