                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 12 2010

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




                             FOR THE NINTH CIRCUIT



FELIX CRUZ MARTINEZ,                             No. 09-16438

               Petitioner - Appellant,           D.C. No. 1:06-cv-00656-AWI

  v.
                                                 MEMORANDUM *
L. E. SCRIBNER, Warden,

               Respondent - Appellee.



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

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Felix Cruz Martinez appeals pro se from the district court’s order denying

his federal habeas petition under 28 U.S.C § 2254. We have jurisdiction under 28

U.S.C. § 2253, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We agree with the district court that the California courts’ resolution of

Martinez’s claim that coerced statements were improperly admitted at trial was not

“contrary to, or [ ] an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States” and did not “result in a

decision that 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).

      Specifically, the California Court of Appeal’s determination that admission

of the first statement was harmless under Chapman v. California, 386 U.S. 18

(1967), because the jury could not have given any weight to the first statement, was

reasonable in light of the jury’s factual findings and the substance of first

statement. See Medina v. Hornung, 386 F.3d 872, 878-79 (9th Cir. 2004).

      Also, the California Court of Appeals reasonably determined that the second

statement was not tainted by the first interview, in light of the time that elapsed

between the interviews of the witness, the less confrontational manner in which the

second interview was conducted, and the substance of the second statement. See

Garvin v. Farmon, 258 F.3d 951 (9th Cir. 2001).

       Accordingly, admission of the first statement did not have a substantial and

injurious effect on the jury’s verdict. See Fry v. Pliler, 551 U.S. 112, 121-22

(2007) (“[I]n § 2254 proceedings a court must assess the prejudicial impact of


                                           2                                      09-16438
constitutional error in a state-court criminal trial under the ‘substantial and

injurious effect’ standard set forth in Brecht [v. Abrahamson], 507 U.S. 619

[1993], whether or not the state appellate court recognized the error and reviewed it

for harmlessness . . . .”).

       AFFIRMED.




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