                                                                              FILED
                            NOT FOR PUBLICATION                                NOV 06 2012

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




                             FOR THE NINTH CIRCUIT



CONSTANTINO CARRERA,                              No. 08-99007

              Petitioner - Appellant,             D.C. No. 1:90-CV-00478-AWI

  v.
                                                  MEMORANDUM *
ROBERT L. AYERS, Jr., Warden,
Warden of the California State Prison at
San Quentin,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Anthony W. Ishii, Chief District Judge, Presiding

                        Argued and Submitted June 20, 2012
                               Pasadena, California

Before: KOZINSKI, Chief Judge, PREGERSON, W. FLETCHER, FISHER,
BERZON, TALLMAN, CLIFTON, IKUTA, N.R. SMITH, MURGUIA, and
CHRISTEN, Circuit Judges.

       Constantino Carrera appeals the district court’s denial of his petition for a

writ of habeas corpus. Carrera alleges multiple trial errors that entitle him to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas relief. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and

we affirm on the issues addressed in this memorandum disposition. In an opinion

filed concurrently with this memorandum disposition, we affirm the denial of

Carrera’s ineffective assistance of counsel claim based on defense counsel’s failure

to make a Wheeler motion.

         We review de novo a district court’s decision to deny a petition for habeas

relief and review a district court’s findings of fact for clear error. Robinson v.

Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010). This court cannot grant habeas relief

unless a trial error “had substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal

quotations omitted). Under this standard, habeas relief cannot be granted unless

there is “a reasonable probability” that the jury would have reached a different

verdict absent the constitutional error. Clark v. Brown, 450 F.3d 898, 916 (9th Cir.

2006).

                               I. Inconsistent Testimony

         Carrera was not prejudiced by any inconsistencies between Miguel

Santana’s testimony at Ramiro Ruiz’s trial and Santana’s testimony at Carrera’s

subsequent trial. Initially, only two of the alleged inconsistencies were in fact

inconsistent: (1) whether it was Ruiz or Carrera who asked Santana if he had the


                                            2
“guts to kill” on the night of the murders and (2) whether it was Ruiz or Carrera

who wore grey Trax sneakers on the night of the murders.

      The testimony relating to whether Santana learned about the killings from

Carrera, Ruiz, or both of them–the third alleged inconsistency–was not, in fact,

inconsistent. Thus, no hearsay exception applied, and the trial court did not err

when it instructed defense counsel not to cross-examine Santana about the

testimony he gave at Ruiz’s trial. Further, because Santana’s testimony was based

on statements made by Carrera, rather than Ruiz, there was no violation of the

Confrontation Clause.

      The fourth alleged inconsistency–whether it was Carrera or Ruiz who

obtained a larger knife during the attack–was not inconsistent. At the trials of both

Ruiz and Carrera, Santana testified that Ruiz’s knife broke and Ruiz went into the

kitchen to get a bigger knife. The prosecutor in Carrera’s trial argued during his

closing that it was Carrera who got the bigger knife. Although this may be

evidence of prosecutorial misconduct, it does not render Santana’s evidence

inconsistent.

      The testimony regarding the “guts to kill” question related only to whether

Carrera intended to kill the victims, not to whether he had intent to commit

robbery. However, Carrera could have been found guilty of felony murder even if


                                          3
he intended only to rob the motel. Thus, any inconsistency was harmless. The

inconsistency regarding who wore the grey Trax sneakers was harmless in light of

the other overwhelming evidence that Carrera participated in the killings. Further,

except for the testimony relating to whether Santana learned about the killings

from Carrera, Ruiz, or both of them, the trial court placed no limitations on defense

counsel’s ability to cross-examine Santana regarding the alleged inconsistency.

      Finally, even if all of the alleged inconsistencies had been fully presented to

the jury, there is no reasonable probability that the jury would have reached a

different verdict. Evidence of Carrera’s participation in the robbery was

overwhelming. Therefore, Carrera was not prejudiced by defense counsel’s failure

to conduct more extensive cross-examination with respect to Santana’s inconsistent

testimony. Nor was Carrera prejudiced by the prosecutor’s objection to defense

counsel’s attempt to cross-examine Santana or by the prosecutor’s failure to correct

the inconsistencies in Santana’s testimony. Thus, Carrera is not entitled to habeas

relief based on this ground.

                          II. Trial Court’s Jury Instructions

      Carrera was not prejudiced by the trial court’s failure to instruct the jury (1)

that a robbery is completed once the perpetrator reaches a place of temporary

safety, and (2) that a person cannot aid and abet a felony murder if his participation


                                           4
in the felony began after the murder occurred. Carrera correctly contends that,

absent these instructions, it was possible for the jury to convict him of felony

murder based only on his participation in crimes as an accessory after the

fact–when he helped destroy the evidence the day after the robbery and murders.

However, based on the evidence presented at trial, there is not a “reasonable

probability” that the jury convicted Carrera merely because he helped destroy

evidence the day after the murders. See Clark, 450 F.3d at 916. Correct jury

instructions would not have changed the outcome of this case given the

overwhelming evidence that Carrera participated in the robbery–witnesses testified

that Ruiz and Carrera were absent from a party during the time of the murders,

witnesses saw a spot of blood on Carrera’s pants, and witnesses testified Carrera

was wearing sneakers whose soles matched bloody footprints left at the murder

scene. Thus, Carrera is not entitled to habeas relief based on this ground.

                        III. Ineffective Assistance of Counsel

      Carrera was not denied effective assistance of counsel based on defense

counsel’s personal and financial difficulties. Under Strickland v. Washington, 466

U.S. 668 (1984), to establish ineffective assistance of counsel, a defendant must

prove: (1) deficient performance–that is, his counsel’s performance “fell below an

objective standard of reasonableness,” id. at 687–88; and (2) prejudice–that is, “a


                                           5
reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different,” id. at 694. Defense counsel had declared

bankruptcy about a year before she was appointed as counsel for Carrera. Further,

not long after she was appointed, her husband shot her during a drunken argument,

and she filed for divorce. Carrera provides a list of errors he contends would not

have occurred had defense counsel familiarized herself more fully with the case.

Carrera, however, fails to show that any of these alleged errors made by defense

counsel prejudiced him. Thus, Carrera is not entitled to habeas relief based on this

ground.

      AFFIRMED.




                                           6
                                                                              FILED
Carrera v. Ayers, No. 08-99007                                                 NOV 06 2012

                                                                           MOLLY C. DWYER, CLERK
Pregerson, Circuit Judge, dissenting respectfully:                          U .S. C O U R T OF APPE ALS




       Defendant Carrera was denied a fair trial. Carrera’s defense attorney was

incompetent and her unprofessional conduct prejudiced Carrera. As explained in

my dissent to the published opinion, Carrera was prejudiced by his attorney’s

failure to raise a Wheeler challenge to the prosecutor’s disproportionate strikes of

Hispanic jurors. See People v. Wheeler, 583 P.2d 748 (Cal. 1978). In the context

of this case, this prejudice alone is sufficient to require reversal.

       Furthermore, Carrera’s defense attorney’s personal and financial problems

resulted in an apparent conflict of interest: while defending Carrera against a

murder charge brought by the District Attorney’s office, Carrera’s defense attorney

was also working with that same District Attorney’s office to secure a felony

conviction of her husband, who shot her in the arm and said that he “meant to kill”

her. The cumulative effect of the defense counsel’s errors and conflict of interest,

the prosecution witness Miguel Santana’s inconsistent testimony, and the trial

court’s incorrect jury instructions deprived Carrera of his due process right to a fair

trial. Accordingly, I would grant Carrera’s request for habeas relief.
