                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 08 2011

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




                            FOR THE NINTH CIRCUIT



RUBEN GOMEZ,                                      No. 10-56876

              Petitioner - Appellant,             D.C. No. 3:09-cv-02750-WQH-
                                                  PCL
  v.

GARY SANDOR, Warden; ATTORNEY                     MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                     Argued and Submitted November 10, 2011
                               Pasadena, California

Before: TALLMAN and MURGUIA, Circuit Judges, and ROSENTHAL,** District
Judge.

       Ruben Gomez, a California state prisoner, appeals the district court’s denial

of his petition for a writ of habeas corpus. He contends that the state trial court’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Lee H. Rosenthal, U.S. District Judge for the Southern
District of Texas, sitting by designation.
decision to exclude third-party culpability evidence on hearsay grounds violated

his constitutional rights under the Sixth and Fourteenth Amendments.

      We review de novo the district court’s decision to deny a 28 U.S.C. § 2254

habeas petition. Moses v. Payne, 555 F.3d 742, 750 (9th Cir. 2009). Gomez

argues that the California Court of Appeal’s decision 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).

      The state court’s decision was neither contrary to, nor an unreasonable

application of, federal law as set forth in Chambers v. Mississippi, 410 U.S. 284

(1973). Unlike the excluded statements in Chambers, which were “in a very real

sense self-incriminatory and unquestionably against [the declarant’s] interest[,]” id.

at 301, the excluded portion of the statement here—that the declarant, Marco

Moedano, acted “before anybody could do anything”—did not clearly inculpate

Moedano. It lacked the assurance of trustworthiness that such self-inculpation

provides. And unlike the statement in Green v. Georgia, 442 U.S. 95, 96–97

(1979) (per curiam), which the trial court excluded in its entirety, here the trial

court admitted the clearly self-inculpatory portion of Moedano’s statement, in

which Moedano admitted that he alone shot the victim.




                                           2
       Additionally, the excluded portion of Moedano’s out-of-court statement was

not “critical” to Gomez’s defense. Chambers, 410 U.S. at 302. Gomez’s defense

theory was that although he and other gang members had been “lookin’ to blast

some” rival gang members earlier in the evening, that activity had ended, and

Gomez was hanging out with Moedano and others when the victim unexpectedly

appeared from around the corner and Moedano suddenly shot the victim. The jury

heard a tape-recorded conversation in which Gomez and Moedano both said that

the victim’s appearance was “unexpected” and in which Moedano admitted that he

ran after and shot the victim ten or eleven times. The jury also heard an eyewitness

testify that there was only one shooter and that no one else at the scene moved

during the brief attack. The excluded portion of the statement, that Moedano acted

“before anybody could do anything,” was cumulative of other evidence that the

jury did hear. In addition, the excluded portion of the statement did not clearly or

directly exculpate Gomez. For these reasons, the excluded portion of the statement

was not critical to his defense. Cf. id. at 294 (concluding that the defense was “far

less persuasive” without the excluded evidence, which directly exculpated the

defendant). There was no Sixth Amendment violation in excluding it from

evidence at trial.




                                          3
      The district court properly concluded that the California court’s decision was

neither contrary to, nor an objectively unreasonable application of, federal law.

See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

      AFFIRMED.




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