                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                 JAN 19 2011

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

MACARIO NIETO,                                   No. 06-56792

              Petitioner - Appellant,            D.C. No. CV-04-03129-VAP

  v.
                                                 MEMORANDUM*
A. A. LAMARQUE,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                      Argued and Submitted December 7, 2010
                               Pasadena, California

Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.

       Macario Nieto (“Nieto”) appeals the district court’s denial of his petition for

a writ of habeas corpus, which alleged that admission of the investigating officer’s

opinion testimony about Nieto’s guilt at his trial for first-degree murder and assault

with a firearm violated his right to a “fundamentally fair” trial under the Due



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Process Clause of the Fourteenth Amendment. We have jurisdiction pursuant to 28

U.S.C. § 2253, and we affirm. The parties are familiar with the facts of the case, so

we repeat them here only to the extent necessary to explain our decision.

      Nieto’s habeas petition, filed on May 4, 2004, is governed by 28 U.S.C. §

2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). When a state court adjudicates a claim on the merits, AEDPA bars

federal habeas corpus relief on that claim unless the last reasoned state-court

adjudication was either (1) “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” or (2) “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).

      The California Court of Appeal, which provided the last reasoned state court

decision, rejected Nieto’s Due Process claim that the investigating officer’s

opinion testimony regarding Nieto’s guilt rendered his trial “fundamentally

unfair.” See McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir. 1993) (noting that

the category of infractions that violate “fundamental fairness” is a very narrow

one). We cannot say that the state court’s determination was contrary to, or

involved an unreasonable application of, clearly established Supreme Court law.




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      In response to a question posed to Detective Enyeart by Nieto’s trial counsel

about whether Nieto had been “set up” for the charged offenses, the prosecution

asked Enyeart on redirect whether Enyeart would be testifying against Nieto if he

thought Nieto had been “set up.” Enyeart responded that he would not be, and that

if he were to receive information that Nieto was not guilty, he “would be the first

one to come before this court and ask this case be dismissed.”

      Even assuming, arguendo, that the trial court erred when it admitted

Enyeart’s opinion testimony, the California Court of Appeal reasonably

determined that introduction of the testimony did not render Nieto’s trial

fundamentally unfair. Based on the context in which the information was

admitted—in direct response to what might otherwise have been misleading

questions from the defense—and given the limited nature of the exchange and the

significant evidence of Nieto’s guilt, Nieto cannot show that any error was so

extreme that it violated his Due Process rights. See Dubria v. Smith, 224 F.3d 995,

1001–02 (9th Cir. 2000) (opinions offered by police officers must be considered in

context and are not presumptively prejudicial).

      Nieto also requested that this court grant certificates of appealability

(“COA’s”) on two additional claims: 1) there was insufficient evidence to sustain

his conviction of assault with a firearm, and 2) repeated references to Nieto’s gang


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affiliation allowed the jury to convict him based on propensity inferences. Under

Slack v. McDaniel, 529 U.S. 473 (2000), this panel should grant COA’s if it

determines that “jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right.” Id. at 478.

      This panel did not grant COA’s for Nieto’s two additional claims because

“jurists of reason” would agree that Nieto cannot state valid claims under AEDPA.

Id. Nieto cannot point to clearly established Supreme Court law which undercuts

the state court’s determination that there was sufficient evidence to sustain Nieto’s

assault conviction. Although there was conflicting testimony as to who was

driving the car when the shots were fired, the jury could reasonably have believed

Michelle Banda’s testimony that Nieto was in the passenger seat, and the

neighbor’s testimony that the passenger fired the gun. Likewise, Nieto fails to cite

a single Supreme Court case which supports the proposition that even repeated

references to a defendant’s gang affiliation can render his trial fundamentally

unfair. Absent this showing, Nieto is not entitled to COA’s on these claims.

      AFFIRMED.




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