                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 05 2011

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




                             FOR THE NINTH CIRCUIT



CONSTANTINO CARRERA,                              No. 08-99007

              Petitioner - Appellant,             D.C. No. 1:90-CV-00478-AWI

  v.
                                                  MEMORANDUM *
ROBERT L. AYERS, Jr., Warden of the
California State Prison at San Quentin,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Anthony W. Ishii, Chief District Judge, Presiding

                        Argued and Submitted June 14, 2010
                             San Francisco, California

Before: O’SCANNLAIN, TASHIMA, and BEA, Circuit Judges.

       Constantino Carrera appeals the district court’s denial of his petition for a

writ of habeas corpus. Carrera alleges multiple trial errors that entitle him to




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas relief.1 We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253 and

affirm on the issues addressed herein.2

      This court reviews de novo a district court’s decision to deny a petition for a

writ of habeas corpus and reviews for clear error a district court’s findings of fact.

Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). This court cannot grant

habeas relief unless a trial error “had substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

Under this standard, habeas relief cannot be granted unless there is “a reasonable

probability” that the jury would have reached a different verdict absent the

constitutional error. Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006).

                              I. Inconsistent Testimony

      Carrera was not prejudiced by any inconsistencies between Miguel

Santana’s testimony at Ramiro Ruiz’s trial and Santana’s testimony at Carrera’s

subsequent trial. Thus, Carrera cannot parlay these alleged inconsistencies into

constitutional claims. Initially, only two of the alleged inconsistencies were in fact



      1
        Because the parties are familiar with the facts, we recite them only as
necessary.
      2
         In an opinion filed concurrently with this memorandum disposition, we
affirm the denial of Carrera’s Strickland claim based on defense counsel’s failure
to make a Wheeler motion.

                                           2
inconsistent: (1) whether it was Ruiz or Carrera who asked Santana if he had the

“guts to kill” on the night of the murders, and (2) whether it was Ruiz or Carrera

who wore grey Trax sneakers on the night of the murders.

      The testimony relating to whether Santana learned about the killings from

Carrera, Ruiz, or both of them—the third alleged inconsistency—was not

inconsistent. Thus, no hearsay exception applied, and the trial court did not err

when it instructed defense counsel not to cross-examine Santana about the

testimony he gave at Ruiz’s trial. Further, because Santana’s testimony was based

on statements made by Carrera, rather than Ruiz, there was no violation of the

Confrontation Clause.

      The fourth alleged inconsistency—whether it was Carrera or Ruiz who

obtained a larger knife during the attack—was not inconsistent. At the trials of

both Ruiz and Carrera, Santana testified that Ruiz’s knife broke and Ruiz went into

the kitchen to get a bigger knife. The prosecutor in Carrera’s trial argued during

his closing that it was Carrera who got the bigger knife. Although this may be

evidence of prosecutorial misconduct, it does not render Santana’s evidence

inconsistent.

      The testimony regarding the “guts to kill” question related only to whether

Carrera intended to kill the victims, not to whether he had intent to commit


                                          3
robbery. However, Carrera could have been found guilty of felony murder even if

he intended only to rob the motel. Thus, any inconsistency was harmless. The

inconsistency regarding who wore the grey Trax sneakers was harmless in light of

the other overwhelming evidence.3

      Finally, even if all of the alleged inconsistencies had been fully presented to

the jury, there is no reasonable probability that the jury would have reached a

different verdict. Evidence of Carrera’s participation in the robbery was

overwhelming. Therefore, Carrera was not prejudiced by defense counsel’s failure

to conduct more extensive cross-examination with respect to Santana’s inconsistent

testimony. Nor was Carrera prejudiced by the prosecutor’s objection to defense

counsel’s attempt to cross-examine Santana or by the prosecutor’s failure to correct

the inconsistencies in Santana’s testimony. Thus, Carrera is not entitled to habeas

relief based on this ground.

                          II. Trial Court’s Jury Instructions

      Carrera was not prejudiced by the trial court’s failure to instruct the jury (1)

that a robbery is completed once the perpetrator reaches a place of temporary



      3
         Except for the testimony relating to whether Santana learned about the
killings from Carrera, Ruiz, or both of them, the trial court placed no limitations on
defense counsel’s ability to cross-examine Santana regarding the alleged
inconsistencies.

                                           4
safety, and (2) that a person cannot aid and abet a felony murder if his participation

in the felony began after the murder occurred. Carrera correctly contends that,

absent these instructions, it was possible for the jury to convict him of felony

murder based only on his participation in the crimes as an accessory after the

fact—when he helped destroy the evidence the day after the robbery and murders.

However, based on the evidence presented at trial, there is not a “reasonable

probability” the jury convicted Carrera merely because he helped destroy evidence

the day after the murders. See Clark, 450 F.3d at 916. Correct jury instructions

would not have changed the outcome of this case given the overwhelming evidence

that Carrera participated in the robbery—witnesses testified Ruiz and Carrera were

absent from a party during the time of the murders, witnesses saw a spot of blood

on Carrera’s pants, and witnesses testified Carrera was wearing sneakers whose

soles matched bloody footprints left at the murder scene. Thus, Carrera is not

entitled to habeas relief based on this ground.

                        III. Ineffective Assistance of Counsel

      Carrera was not denied effective assistance of counsel based on defense

counsel’s personal and financial difficulties. Under Strickland v. Washington, 466

U.S. 668 (1984), to establish ineffective assistance of counsel, a defendant must

prove: (1) deficient performance—that is, his counsel’s performance “fell below an


                                           5
objective standard of reasonableness,” id. at 687–88; and (2) prejudice—that is, “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different,” id. at 694. Defense counsel had declared

bankruptcy about a year before she was appointed counsel for Carrera. Further,

not long after she was appointed, her husband shot her during a drunken argument

and she filed for divorce. Carrera provides a list of errors he contends would not

have occurred had defense counsel familiarized herself more fully with the case.

Despite these personal and financial difficulties, Carrera fails to show that any

error made by defense counsel prejudiced Carrera. Thus, Carrera is not entitled to

habeas relief based on this ground.

      AFFIRMED.




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