                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NAPOLEON BROWN,                                  No. 14-15622

              Petitioner - Appellant,            D.C. No. 3:11-cv-00977-JST

 v.
                                                 MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA; MICHAEL
HENNESSEY, San Francisco Sheriff,

              Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Jon S. Tigar, District Judge, Presiding

                    Argued and Submitted September 18, 2015
                            San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      Napoleon Brown was convicted in state court of robbery, carjacking, and

involuntary manslaughter. His sentence was enhanced because of firearm use



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
during the robbery. Brown then sought federal habeas relief under 28 U.S.C.

§ 2254, which the district court denied. We affirm.

      1. Habeas relief is unavailable on Brown’s Fifth Amendment claim. We

assume without deciding that the state trial court committed constitutional error

when it permitted the prosecutor to use as evidence of guilt Brown’s pre-arrest,

pre-Miranda warning invocation of his right to remain silent. But even if we were

otherwise empowered to grant habeas relief on that account, see § 2254(d), Brown

cannot demonstrate that any cognizable constitutional error resulted in “actual

prejudice” as to the firearm enhancements or the robbery and carjacking

convictions. See Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)).

      The prosecutor did not attempt to connect Brown’s decision not to meet with

the police to the firearm enhancements; it therefore is unlikely that the prosecutor’s

comments about Brown’s decision influenced the jury’s conclusion on the firearms

enhancements. The prosecutor’s statements were used to show Brown’s

consciousness of guilt generally, not expressly or impliedly to suggest that Brown

personally used a gun during the robbery. The jury had no reason to think Brown

declined to talk to the police because he was concerned that, if prosecuted, he

would be convicted not only for the robbery, carjacking, and White’s death, but


                                           2
also would receive a longer sentence because he used a firearm during the robbery.

Moreover, two eyewitnesses identified Brown as the gunman. We thus cannot

conclude that there is “more than a ‘reasonable possibility’ that the error was

harmful.” Id. at 2198 (quoting Brecht, 507 U.S. at 637). We reach the same result

upon applying the “AEDPA/Chapman” standard. Id. (quoting Fry v. Pliler, 551

U.S. 112, 119-20 (2007)).

      The prosecutor’s comments also were not prejudicial as to the robbery and

carjacking charges. In addition to the eyewitness testimony, a bandana was found

at the robbery location with DNA matching Brown’s DNA; Officer Watts testified

that he saw two African-American males with a bank deposit bag run to a

particular parked car and get into the passenger side; White stated that “S.B.” was

the person who pushed her out of the car (and therefore likely was one of the two

African-American men seen getting into the Ford); there was evidence that Brown

was sometimes called “S.B.”; police officers found Johnny Rockets property in the

Ford; and Brown attempted to flee when arrested. See, e.g., Illinois v. Wardlow,

528 U.S. 119, 124 (2000) (noting that flight can be evidence of wrongdoing).

Considering “the record as a whole,” the State’s evidence of Brown’s guilt with

regard to the robbery and carjacking charges was, at a minimum, “certainly

weighty.” Brecht, 507 U.S. at 638-39. Our review of the record thus does not


                                          3
permit more than “mere speculation that [Brown] was prejudiced by trial error.”

Ayala, 135 S. Ct. at 2198 (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)

(per curiam)).

      2. We further hold habeas relief unavailable on Brown’s Sixth Amendment

claim. The California Court of Appeal held that Bruton v. United States, 391 U.S.

123 (1968), did not require exclusion of White’s statements in response to Officer

Aschero’s questions on the Golden Gate Bridge because the statements were dying

declarations and did not offend the Confrontation Clause when used at trial. The

Supreme Court has not clearly established that admission of a testimonial dying

declaration violates the Confrontation Clause. See Michigan v. Bryant, 562 U.S.

344, 351 n.1 (2011); Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004)

(declining to decide whether the Confrontation Clause “incorporates an exception

for testimonial dying declarations”). The California Court of Appeal’s decision

therefore was not “a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).

      3. We deny Brown’s motion to expand the certificate of appealability to

include the uncertified Batson claims. See 9th Cir. R. 22-1(e). “Where a district

court has rejected the constitutional claims on the merits . . . [t]he petitioner must


                                            4
demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Having carefully reviewed the district court’s decision and the state court

record, including the voir dire and trial transcripts, we hold that this standard has

not been met.

AFFIRMED.




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