                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICARDO MARQUEZ MACHUCA,                         No. 11-55997

              Petitioner - Appellant,            D.C. No. 5:09-cv-01422-AHM-
                                                 DTB
  v.

MIKE MCDONALD, Warden,                           MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                        Argued and Submitted June 6, 2012
                              Pasadena, California

Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.

       Ricardo Marquez Machuca appeals from the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      A California jury convicted Machuca of first-degree murder and he was

sentenced to twenty-six years to life in prison. On direct appeal, Machuca argued

that his trial counsel had been constitutionally ineffective when he failed to object

to the admission of statements made by Machuca during a videotaped interview

after Machuca allegedly invoked his Fifth Amendment right to silence. The

California Court of Appeal affirmed Machuca’s conviction, concluding that

Machuca’s counsel was not ineffective because Machuca had not unambiguously

invoked his rights. The California Supreme Court denied review, and Machuca

filed a timely federal habeas petition.

      The district court held that the California Court of Appeal’s decision that

Machuca’s invocation was ambiguous was an unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d)(1). But the district court

concluded that even if Machuca had satisfied the deficient performance prong of

Strickland v. Washington, he had not shown prejudice from his counsel’s error.

See 466 U.S. 668, 687 (1984). The district court thus denied Machuca’s habeas

petition but issued a Certificate of Appealability (COA) with respect to Machuca’s




                                     Page 2 of 5
ineffective assistance claim based on counsel’s failure to object to the admission of

the post-invocation statements.1

      We agree with the district court and hold that even if the performance of

Machuca’s trial counsel was deficient, there is not “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 695.2

      At trial, the State presented strong evidence of Machuca’s guilt. Witness

testimony established that Machuca was the last person seen with the victim the

night of the murder, only fifteen to thirty minutes before the victim was killed.

Several witnesses testified that they saw Machuca the next morning with a fresh

cut on his hand, and that he provided conflicting explanations for how he cut

himself. Although the murder weapon was never found, one witness testified that




      1
         The district court also denied relief on several other claims presented in
Machuca’s federal habeas petition, including other claims of ineffective assistance
of trial counsel. The district court did not issue a COA with respect to those
claims, and we decline to expand the COA in order to consider them. See Ninth
Circuit Rule 22-1(e).
      2
        Because the California Court of Appeal based its decision only on
Strickland’s performance prong, Machuca urges us to apply de novo review to the
question of prejudice. See Rompilla v. Beard, 545 U.S. 374, 390 (2005). But even
under de novo review we would conclude that Machuca has not shown errors “so
serious as to deprive [him] of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.

                                     Page 3 of 5
in the week leading up to the murder, he lent Machuca a knife that was consistent

with the coroner’s description of the murder weapon. Machuca’s girlfriend at the

time testified that a day or two after the murder, Machuca confessed to her that he

had killed somebody. Finally, the State introduced a pair of shoes found in the car

Machuca was driving the day of his arrest that had Machuca’s DNA on the inside

of the shoe and traces of the victim’s blood on the soles.

      Machuca argues that despite this evidence, the admission of his post-

invocation statements prejudiced him because the prosecutor relied on those

statements in his closing argument to argue consciousness of guilt. We disagree.

      Prior to his attempted invocation, Machuca repeatedly denied in the recorded

statement that he had been with the victim on the night of the murder. As noted

above, this was contradicted at trial by overwhelming witness testimony and other

evidence. After his invocation, Machuca admitted that he had been with the victim

and proceeded to give other explanations—both for the cut on his hand and his

whereabouts in the hours after the murder—that were also contradicted by

testimony at trial. Throughout the interview, Machuca denied involvement in the

murder.

      The prosecutor’s closing argument relied chiefly on the physical evidence

and witness testimony against Machuca. At several points, however, the


                                     Page 4 of 5
prosecutor argued that Machuca’s lies to the police during his interrogation showed

consciousness of guilt. But even if Machuca’s post-invocation statements had been

suppressed, the prosecutor still could have argued that Machuca’s pre-invocation

explanation of his whereabouts—which had been contradicted by numerous

witnesses—was not truthful and showed consciousness of guilt. Although this line

of argument would have been limited to Machuca’s pre-invocation statements, its

substance would have remained the same.

      In light of the minor role Machuca’s post-invocation statements had in the

closing argument, and the otherwise strong evidence of Machuca’s guilt, we cannot

conclude, even under de novo review, that “there is a reasonable probability that,

absent [counsel’s] errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. The judgment of the district court is AFFIRMED.




                                    Page 5 of 5
