                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 17 2015

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



                            FOR THE NINTH CIRCUIT


MARIO MERINO,                                    No. 14-16550

              Petitioner - Appellant,            D.C. No. 4:08-cv-03231-CW

 v.
                                                 MEMORANDUM*
MARION SPEARMAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Claudia Wilken, Senior District Judge, Presiding

                           Submitted August 13, 2015**
                             San Francisco, California

Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.

      Appellant Mario Merino appeals the district court’s denial of his petition for

writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),

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 review a district court’s denial of a habeas petition de novo. Musladin v.

Lamarque, 555 F.3d 830, 835 (9th Cir. 2009). A habeas petition challenging a

state court conviction may be granted only if the last reasoned state court decision

(1) was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or (2) “resulted 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).

      Merino was convicted of aggravated sexual assault of a child under 14 and

10 or more years younger than him. He argues that the trial court violated his due

process rights under Doyle v. Ohio, 426 U.S. 610 (1976), by permitting the

prosecution to question him and to comment on his invocation of his right to

remain silent in a police interview after receiving his Miranda warnings. He

argues the court further violated Doyle by instructing the jury that it may find

instances in which Merino was accused of the charged crime and failed to reply to

the accusation as “indicating an admission that the accusation thus made was true.”

      It is plausible that Merino’s Doyle rights were violated by the trial court’s

instruction to the jury, as well as by the prosecution’s questions, which arguably

referred both to Merino’s voluntary post-Miranda comments to the detective and to

his later invocation of his right to silence. However, we cannot conclude that it
was unreasonable for the California Court of Appeal to hold that any such violation

was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). For one, as

the district court noted, defense counsel objected several times to the challenged

line of questioning, and many of these objections were sustained. See Greer v.

Miller, 483 U.S. 756, 763-64 (1987) (holding no Doyle violation occurs if the trial

court sustains a timely objection to the allegedly improper question and instructs

the jury to disregard that question).

      We generally consider three factors when weighing the harmlessness of a

possible Doyle violation: “(1) the extent of [the] comments . . ., (2) whether an

inference of guilt from silence was stressed to the jury, and (3) the extent of other

evidence suggesting [the] defendant’s guilt.” Hurd v. Terhune, 619 F.3d 1080,

1090 (9th Cir. 2010) (quoting United States v. Velarde Gomez, 269 F.3d 1023,

1034-35 (9th Cir. 2001) (en banc)) (alterations in original). These factors weigh

against Merino. The problematic questions appear to be directed primarily towards

the proper purpose of examining Merino’s immediate response to the detective’s

accusing him of child molestation, prior to Merino’s invoking his Miranda rights.

Any questions or comments on Merino’s conduct during the police interview

constituted only a portion of the prosecution’s argument against Merino’s

credibility, which itself was only a piece of a broader case that also included

testimony from Merino’s wife and the victim of the crime.
AFFIRMED.
