                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 16 2009

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



                            FOR THE NINTH CIRCUIT


JOAQUIN LEON PADIN,                               No. 08-16884

              Petitioner - Appellant,             D.C. No. 5:99-cv-21172-RMW

  v.
                                                  MEMORANDUM *
A. A. LAMARQUE,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                      Argued and Submitted December 7, 2009
                             San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and LUCERO, ** Circuit
Judge.

       Petitioner Joaquin Leon Padin appeals the federal district court’s denial of

his petition for writ of habeas corpus challenging his state court conviction for



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
second-degree murder. This court has jurisdiction pursuant to 28 U.S.C. § 2253,

and we affirm the judgment of the district court.1

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

allows for habeas relief only if the state court’s decision was contrary to or

unreasonably applied clearly established federal law as determined by the Supreme

Court, or was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1),(2).

      Padin contends that the kite should not have been admitted at trial because it

directly implicated him and was not redacted to omit all reference to his identity.

Although the Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) held

that in certain circumstances an admission by a codefendant could not be admitted

in a joint trial, in Richardson v. Marsh, 481 U.S. 200 (1987), the court indicated

that the admission must expressly implicate the defendant. Here, although the kite

referred to Padin’s identity and his knowledge of the murder, the kite did not assert

that Padin participated in the murder. The Court of Appeal’s determination that the

kite did not directly implicate Padin was not unreasonable.




      1
        The parties are familiar with the facts of this case and we repeat them here
only as necessary.

                                           2
      Padin’s second contention alleges that his counsel was ineffective in failing

to request a limiting instruction and failing to ask for a curative instruction

subsequent to the prosecutor’s rebuttal argument which improperly urged the jury

to use the kite against Padin. Pursuant to Strickland v. Washington, 466 U.S. 668

(1984), to prevail on a claim of ineffective assistance of counsel, Padin must show

that: (1) counsel’s performance was so deficient that counsel was not functioning

as the “counsel” guaranteed the defendant by the Sixth Amendment, and (2) “the

deficient performance prejudiced the defense” such that “counsel’s errors were so

serious as to deprive the defendant of a fair trial . . .” 466 U.S. at 687. Here,

Padin’s allegations are not supported by the record. Padin’s trial counsel objected

to the admission of the kite and to the prosecutor’s closing statements.

Furthermore, the trial court admonished the jury to disregard the prosecutor’s

comments during her rebuttal argument, reiterating that the kite could not be

considered as evidence against Padin. Thus, the Court of Appeal’s denial of

Padin’s claim of ineffective assistance of counsel was reasonable.

      AFFIRMED.




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