                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JUL 23 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

JOSEPH CORNETT,                                 No. 13-16174

             Petitioner - Appellant,            D.C. No. 4:11-cv-04262-PJH

       v.
                                                MEMORANDUM*
DOMINGO URIBE, JR., Warden,

             Respondent - Appellee.

                  Appeal from the United States District Court
                       for the Northern District of California
                Phyllis J. Hamilton, Chief District Judge, Presiding

                    Argued and Submitted December 10, 2014
                     Submission Vacated December 11, 2014
                           Resubmitted June 23, 2015
                            San Francisco, California

Before: FISHER and PAEZ, Circuit Judges, and QUIST, District Judge.**

      Joseph Cornett appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition. We have jurisdiction under 28 U.S.C. § 1291, we review de novo,

see Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005), and we affirm.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
      1. The California Court of Appeal reasonably applied clearly established

federal law when it held the trial court’s failure to give a requested no-adverse-

inference instruction, in violation of Cornett’s constitutional rights under Carter v.

Kentucky, 450 U.S. 288 (1981), was nonstructural error. The court of appeal’s

conclusion was consistent with the decisions of this and other courts, see United

States v. Soto, 519 F.3d 927, 930 (9th Cir. 2008); Lewis v. Pinchak, 348 F.3d 355,

358 (3d Cir. 2003); United States v. Burgess, 175 F.3d 1261, 1266-67 (11th Cir.

1999); United States v. Brand, 80 F.3d 560, 568 (1st Cir. 1996); Finney v.

Rothgerber, 751 F.2d 858, 864 (6th Cir. 1985); Richardson v. Lucas, 741 F.2d 753,

754-55 (5th Cir. 1984), and was reasonable in light of Chapman v. California, 386

U.S. 18, 24 (1967), in which the Supreme Court held Griffin error is nonstructural.

      2. The district court also properly concluded the Carter error was not

prejudicial under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under Davis

v. Ayala, 135 S. Ct. 2187 (2015), we may grant relief only if the state court’s

harmlessness determination under Chapman “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded agreement.” Id. at 2199 (quoting Harrington v. Richter,

562 U.S. 86, 103 (2011)) (internal quotation marks omitted). That standard is not

satisfied here.


                                          2
      First, there was strong evidence of guilt, including Demaurie Williams’

statement to the police, the gunshot residue on Cornett’s hands and testimony by

the victim and three of his friends implicating Cornett as the shooter. Anthony

(Jordan) Murphy, the victim, thought the gunshot came from the front seat. Deon

Glasper saw the driver making threats and flashing a gun. Shelby Green and Paul

Smith both identified the driver as the shooter. Although there were

inconsistencies in the testimony, the witnesses never wavered on their crucial

testimony linking the driver to the gun and the shooting. Second, neither the

prosecution nor the trial court commented on Cornett’s failure to testify. Each side

referred to the other’s failure to call logical witnesses, but neither party drew the

jury’s attention to Cornett’s decision not to take the stand. Third, Cornett’s trial

counsel presented a poor defense, failing to exploit the potential weaknesses in the

prosecution’s case. In sum, because we cannot say the California Court of Appeal

applied Chapman’s harmless error standard in an objectively unreasonable manner,

we affirm the denial of habeas relief. See id. at 2198.

      AFFIRMED.




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