                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 14 2013

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




                            FOR THE NINTH CIRCUIT



CARLOS MONTOYA,                                   No. 11-35695

              Petitioner - Appellant,             D.C. No. 3:07-cv-00379-BLW

  v.
                                                  MEMORANDUM *
KIM JONES, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                      Argued and Submitted February 4, 2013
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Carlos Montoya appeals the district court’s dismissal of his petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We review de novo the

district court’s dismissal of the petition. White v. Martel, 601 F.3d 882, 883 (9th




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Cir. 2010) (per curiam). We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm.

      1. Montoya was charged with three counts of lewd conduct with a minor

under the age of sixteen, in violation of Idaho Code § 18-1508. The first count was

for “manual/genital contact with the intent of appealing to, arousing, or gratifying

the sexual desires of [Montoya].” The second and third counts used the same

language, except the second count was for “oral/genital contact” and the third was

for “genital/genital contact.” At trial, the jury was told in Instruction No. 18 that

the state had to prove, in relevant part, that Montoya had “committed an act of

manual-genital contact or oral-genital contact or genital-genital contact or any

other lewd or lascivious act upon or with the body of [the victim],” and that the act

was intended “to arouse, appeal to, or gratify the lust or passions or sexual desires

of either of them.” (emphases added).

      2. On direct review, the Idaho Court of Appeals determined that Jury

Instruction No. 18 varied from the charging document, and that this variation

violated Montoya’s constitutional right to notice. The Idaho Court of Appeals

nevertheless affirmed the conviction on the ground that the error was harmless.

The only issue before this court is whether the error was prejudicial under Brecht v.

Abrahamson, 507 U.S. 619 (1993). An instructional error is prejudicial under

Brecht “if, after reviewing the record as a whole, [the court] conclude[s] that there
was a substantial and injurious effect or influence on the verdict, or if [the court is]

‘left in grave doubt’ as to whether there was such an effect.” Pulido v. Chrones,

629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). Here, the error did not have a substantial or injurious effect or

influence on the verdict. The only two witnesses who testified at trial were

Montoya and the victim. Because Montoya offered only a general denial of the

victim’s testimony — and did not impeach the victim or offer another version of

events — the jury had to determine whether to believe either the victim’s

testimony or Montoya’s testimony. Therefore the jury must have credited the

victim’s testimony that described specific acts consistent with the charging

document.

      3. Montoya also raised three uncertified issues in his opening brief. He

contends that (1) prosecutorial misconduct violated his due process rights, (2) he

was deprived of his Sixth Amendment rights to effective assistance of counsel, and

(3) he was deprived of his right to a speedy trial. Montoya, however, has not made

a substantial showing of the denial of any of these rights, and therefore we decline

to issue a certificate of appealability on these uncertified issues. See 28 U.S.C. §

2253(c)(2).

      AFFIRMED.
