                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              MAR 13 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH ANTONIO RESVALOSO,                         No.    16-56427

              Petitioner-Appellant,               D.C. No.
                                                  5:14-cv-00026-CJC-SP
 v.

J. SOTO, Warden,                                  MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                             Submitted March 5, 2018**
                                Pasadena, California

Before: Reinhardt and Nguyen, Circuit Judges, and Settle,*** District Judge.

      Petitioner-Appellant Resvaloso appeals the district court’s order denying his

petition for a writ of habeas corpus. His first trial ended in mistrial. After a second

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
trial, the jury found Resvaloso guilty of second degree murder and further found

that he personally discharged a firearm from a moving vehicle. Resvaloso argues

that his conviction was obtained in violation of Harrison v. United States, 392 U.S.

219 (1968), because he was effectively compelled to testify at the first trial as a

result of the trial court’s erroneous ruling that his unlawfully-obtained statement

was admissible, and at the second trial as a result of that trial court’s ruling that his

previous trial testimony was voluntary and thus admissible even if his statement

was not. We review under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), and we affirm.

      1. The California Court of Appeal’s determination that Resvaloso “chose to

testify voluntarily and to introduce his recorded statement as part of his defense” in

his first trial was not an objectively unreasonable determination of the facts under 28

U.S.C. § 2254(d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). First,

Resvaloso himself explained why he took the stand in both trials: “he wanted to

explain what had happened.” Although his counsel emphasized at the hearings on the

motions to suppress that the only reason her client would take the stand would be in

response to the trial courts’ rulings on admissibility, it was not objectively

unreasonable for the state court to defer to Resvaloso’s explanation over his counsel’s.

Second, it was not unreasonable to conclude that Resvaloso’s preemptive decision to


                                            2
take the stand was a “tactical decision” because “the prosecution did not introduce any

evidence of defendant’s prior testimony or his recorded statement in its case-in-chief

in either the first or the second trial.” Third, “substantial circumstantial evidence

supported the jury’s conviction,” and Resvaloso conceded in his state-court brief that

“[a]side from pointing to the insufficiency of the People’s case, his only real defense

was self defense, which required his testimony to establish.”          The Harrison

exclusionary rule does not apply where the defendant “may have been motivated to

take the witness stand in the first place only by reason of the strength of the lawful

evidence adduced against him.” Harrison, 392 U.S. at 222. Because the California

Court of Appeal’s findings are “supported by substantial evidence in the state court

record,” Hibbler, 693 F.3d at 1146, we cannot say that the state court was objectively

unreasonable in concluding that Resvaloso testified voluntarily.

      2. We also cannot say that the California Court of Appeal unreasonably

applied Harrison under 28 U.S.C. § 2254(d)(1). Unlike in Harrison, the

prosecution here did not introduce the unlawfully-obtained statement in its case-in-

chief, thereby giving rise to a new and different legal issue. Even if there were

good reasons to extend Harrison’s exclusionary rule to that new legal question, it

was not an “unreasonable application” of that case for the California Court of

Appeal to decline to do so. See Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir.


                                          3
2016) (citing White v. Woodall, 134 S. Ct. 1697, 1706 (2014)).

AFFIRMED




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