                                                                                FILED
                            NOT FOR PUBLICATION                                 AUG 24 2012

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


                           FOR THE NINTH CIRCUIT


ROLANDO SOLIS,                                   No. 09-15865

              Petitioner - Appellant,            D.C. No. 1:07-cv-00221-JMD

  v.
                                                 MEMORANDUM*
J. YATES,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  John M. Dixon, Jr., Magistrate Judge, Presiding

                       Argued and Submitted August 7, 2012
                            San Francisco, California

Before:       CALLAHAN and WATFORD, Circuit Judges, and KORMAN,
              Senior District Judge.**

       Rolando Solis appeals from the district court’s order denying his petition for

a writ of habeas corpus. He claims ineffective assistance of trial counsel.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
                                                                         Page 2 of 3
      1. The district court agreed with the California Court of Appeal that counsel

performed deficiently by failing to clarify in his closing argument the difference

between excuse and mitigation to manslaughter. The district court also held that

the Court of Appeal did not unreasonably apply Strickland v. Washington, 466

U.S. 668 (1984), in concluding that counsel’s deficient performance did not result

in prejudice to Solis. We need not address the first holding, because we agree with

the second. The trial court gave separate, adequate instructions on excuse and

mitigation. The Court of Appeal assumed the jury obeyed these instructions and,

based on its review of the trial record, concluded that there was no reasonable

probability that counsel’s failure to explain the difference between excuse and

mitigation affected the verdict. This conclusion does not represent an unreasonable

application of Strickland. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131

S. Ct. 770, 785 (2011).


      2. The district court found compelling Solis’s argument that counsel

performed deficiently by failing to investigate and present an alibi witness. We

need not address this argument because the California Supreme Court could

reasonably have applied Strickland and concluded that any such deficient

performance did not result in prejudice to Solis. See Richter, 131 S. Ct. at 786.

The record before the California Supreme Court shows only that the witness would
                                                                           Page 3 of 3
have offered generalized testimony that she was with Solis during the week of the

shooting, not that she was with him at the precise time, or even necessarily the day,

of the shooting. Indeed, the record shows that the witness would have testified that

Solis sometimes left her alone for brief periods during the week of the shooting.

The jury could have taken this testimony to confirm, rather than negate, the

possibility that Solis had sufficient opportunity to shoot the victim.


      3. Solis’s ineffective assistance of counsel claims concern unrelated

defenses—one concerns mitigation, the other misidentification. The California

Supreme Court could have concluded that counsel’s performance was deficient in

both instances yet reasonably rejected Solis’s cumulative error claim. Id.1


      AFFIRMED.




      1
              We decline to expand the certificate of appealability to include Solis’s
claim, raised for the first time on appeal, that counsel was ineffective for failing to
object to hearsay testimony identifying Solis as the shooter. Solis did not present
this claim to the state courts, so it is unexhausted. See Robinson v. Kramer, 588
F.3d 1212, 1216–17 (9th Cir. 2009).
