                                                                                FILED
                              NOT FOR PUBLICATION                                JAN 09 2013

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



                              FOR THE NINTH CIRCUIT


    PAUL OTT,                                     No. 09-56811

               Petitioner - Appellant,            D.C. 2:08-cv-08302-ODW-DTB

      v.
                                                  MEMORANDUM*
    KELLY HARRINGTON, WARDEN

                Respondent - Appellee.


                      Appeal from the United States District Court
                          for the Central District of California
                      Otis D. Wright, II, District Judge, Presiding

                        Argued and Submitted December 6, 2012
                               San Francisco, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.


      Paul Ott challenges the district court’s denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The case is reviewed under the

deferential standards set forth in the Antiterrorism and Effective Death Penalty Act

of 1996.


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The facts are known to the parties. Ott argues that his statement to the

police, obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), was

involuntary, and therefore inadmissible at trial for impeachment purposes.

Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960). Even if Ott’s statement were

found involuntary, his claim fails because he cannot show the admission of his

statement had a substantial and injurious effect on the jury’s verdict. See Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993). Had the prosecution refrained from

using Ott’s statement to impeach him, the jury still would have been persuaded by

extensive evidence against him, including the testimonies of other female victims;

physical evidence pinning him to the murder and oral copulation; the absence of

significant dissimilarity between Ott’s theory of self-defense in his statement to the

police and that which he later offered on the stand; and Ott’s own admissions on

the stand that he killed the victim. Moreover, Ott’s statement was in fact not

couched as an admission of guilt but as a justification of his act. The California

Court of Appeal did not act unreasonably in denying relief. See 28 U.S.C. §

2254(d).

      We therefore hold that Ott is not entitled to federal habeas relief. The

district court’s denial of the petition is AFFIRMED.




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