                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 29 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ERNESTO MEJORADO,                                No. 13-55200

              Petitioner - Appellant,            D.C. No. 2:12-cv-02402-R-VBK

 v.
                                                 MEMORANDUM*
ANTHONY HEDGPETH, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted October 20, 2015
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges and SESSIONS,** District Judge.

      Ernesto Mejorado, a California state court prisoner, appeals from the district

court’s denial of his petition for a writ of habeas corpus. We have jurisdiction




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
pursuant to 28 U.S.C. § 1291, and we affirm. As the parties are familiar with the

facts, we do not recount them here.

      1. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), it

was not an unreasonable application of Chapman v. California, 386 U.S. 18, 24

(1967), for the California Court of Appeal to hold that any error in excluding

Adan’s testimony was “harmless beyond a reasonable doubt.”1 A state court’s

harmlessness determination is considered a decision on the merits entitled to

AEDPA deference, Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015) (citation

omitted), and “a federal court may not award habeas relief under § 2254 unless the

harmlessness determination itself was unreasonable,” id. at 2199 (emphasis in

original) (citation omitted).

      The California Court of Appeal gave three reasons for its harmlessness

determination: (1) the jury would not have believed Adan’s testimony; (2) the

testimony was essentially cumulative; and (3) overwhelming evidence established

Mejorado’s guilt. First, it was not unreasonable for the California Court of Appeal

to find that the jury would not have believed Adan’s testimony. When it refused to



      1
       Because the California Court of Appeal’s decision that any error was
harmless was not an unreasonable application of Chapman, we may not review de
novo the question of whether the trial court’s decision to exclude the relevant
portion of Adan Lopez’s testimony was constitutional error.

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allow Adan to testify, the trial court reasoned that Adan was biased in favor of

Mejorado. The state appellate court affirmed that finding, and it is presumed

correct on appeal, 28 U.S.C. § 2254(e)(1). Where, as here, evidence is deemed

untrustworthy, the exclusion of that evidence is unlikely to be prejudicial. See,

e.g., United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976). Further, unless

testimony is “trustworthy,” its exclusion does not implicate a defendant’s right to

present a defense. See Cudjo v. Ayers, 698 F.3d 752, 754-55 (9th Cir. 2012).

      Second, it was not unreasonable for the California Court of Appeal to find

that the excluded testimony was cumulative. Adan was allowed to testify that after

Flores was killed, Ramirez said that he killed Flores. Neither the exclusion nor the

admission of cumulative evidence is likely to cause substantial prejudice. See e.g.,

Wong v. Belmontes, 558 U.S. 15, 22-23 (2009); Jackson v. Brown, 513 F.3d 1057,

1084-85 (9th Cir. 2008).

      Finally, it was not unreasonable for the California Court of Appeal to find

that there was overwhelming evidence that established Mejorado’s guilt as the

shooter or as an aider and abettor. Here, substantial circumstantial evidence

connected Mejorado to the murder: Mejorado and Ramirez were seen taking the

tires off Flores’s car the following day, Mejorado had burn marks on his face after

Flores’s car was set on fire, Mejorado knew about Flores’s recent $18,000 tax


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refund, David Lopez testified that Mejorado said that “we” killed somebody, and,

after the murder, Mejorado and Ramirez would not let Sanchez go anywhere

without their authorization. Where the evidence unaffected by the alleged trial

error overwhelmingly points toward a petitioner’s guilt, the error will be deemed

harmless. See Cook v. Schriro, 538 F.3d 1000, 1021 (9th Cir. 2008). Indeed, an

error may be overlooked as harmless even if the properly admitted evidence was

“weighty” but “not overwhelming.” Brecht v. Abrahamson, 507 U.S. 619, 639

(1993).

      As a fairminded jurist could reasonably agree with any of the California

Court of Appeal’s three reasons for concluding that the exclusion of Adan’s

testimony was harmless, Mejorado is not entitled to habeas relief.

      2. The California Court of Appeal’s determination that there was sufficient

evidence to support Mejorado’s conviction for the murders of Sanchez and San

Miguel was not an unreasonable application of Jackson v. Virginia, 443 U.S. 307

(1979). “[O]n habeas review, a federal court may not overturn a state court

decision rejecting a sufficiency of the evidence challenge” unless “the state court

decision was objectively unreasonable.” Coleman v. Johnson, 132 S. Ct. 2060,

2062 (2012) (per curiam) (internal quotation marks and citations omitted). The

California Court of Appeal listed the evidence against Mejorado: (1) Mejorado and


                                          4
Ramirez committed the Flores murder, and the evidence showed that Sanchez and

San Miguel were killed because they “knew too much”; (2) Mejorado and Ramirez

restricted Sanchez’s freedom of movement after the Flores murder; (3) Mejorado

was present the night San Miguel and Sanchez were murdered; (4) Mejorado

participated in cleaning up the crime scene, and tried to convince others to go to

Mexico with him and Ramirez; (5) Mejorado gave a false name and date of birth to

police when arrested; and (6) in a taped jailhouse conversation, Mejorado tried to

fabricate a false alibi. It was not objectively unreasonable for the court to conclude

there was sufficient evidence for a rational jury to find Mejorado guilty of the

murders of Sanchez and San Miguel.

      3. The California Court of Appeal’s determination that there was ample

evidence that the Sanchez and San Miguel murders were committed in association

with the gang, or to benefit the gang by keeping gang members out of jail for the

Flores murder, sending a message to other witnesses, enhancing the gang’s

reputation, and creating fear and intimidation in the community, was not an

unreasonable application of Jackson v. Virginia. The court reasonably concluded

that a rational trier of fact could have found the necessary elements of the

enhancement. See Emery v. Clark, 643 F.3d 1210, 1216 (9th Cir. 2011) (per

curiam).


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AFFIRMED.




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