                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE PASSALACQUA,                                No. 14-56674

              Petitioner - Appellant,            D.C. No. 2:12-cv-02430-AG-FFM

 v.
                                                 MEMORANDUM*
MIKE MCDONALD,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                        Argued and Submitted May 3, 2016
                              Pasadena, California

Before: FISHER, M. SMITH and NGUYEN, Circuit Judges.

      Jose Passalacqua appeals the district court’s denial of his federal habeas

petition collaterally challenging his conviction for kidnapping and raping a 16-

year-old girl. He contends he received ineffective assistance because defense

counsel failed to present evidence that the victim both lied about locking herself in



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Passalacqua’s bathroom and could have been suffering side-effects from her

Lexapro medication. The state argues Passalacqua’s claim is untimely and fails on

the merits. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

      We review de novo the denial of a habeas petition, see Bribiesca v. Galaza,

215 F.3d 1015, 1018 (9th Cir. 2000), including whether the petition was timely,

see Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Deference to the state

court’s determination is required under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d)(1). The California

Supreme Court’s denial of Passalacqua’s petition without holding an evidentiary

hearing meant the court determined that, assuming his factual allegations were

true, Passalacqua was not entitled to relief. People v. Duvall, 9 Cal. 4th 464, 474-

75 (1995). Under AEDPA, we cannot grant relief unless that determination was

unreasonable. See Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

      1.     The ineffective assistance claim was timely. The parties agree the

claim is not time-barred if Passalacqua receives equitable tolling for the period

between the state trial court’s denial of his habeas petition and his appeal of that

ruling. So long as he “acted diligently in the matter,” Passalacqua was entitled to

equitable tolling for this period because he was unaware the state court had denied

his petition. Ramirez, 571 F.3d at 997 (quoting Woodward v. Williams, 263 F.3d


                                           2
1135, 1143 (10th Cir. 2001)). Passalacqua acted diligently by checking the status

of his petition about six months after filing it, see Fue v. Biter, 810 F.3d 1114,

1117 (9th Cir. 2016) (“[C]ourts have generally determined that a prisoner who

delayed fewer than ten months before inquiring into the status of his case acted

with sufficient diligence . . . .”), and timely filing an appeal after receiving notice

of the denial.

      2.     The California Supreme Court reasonably could have concluded

counsel’s performance did not “f[a]ll below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). This case is

distinguishable from Hart v. Gomez, 174 F.3d 1067, 1071 (9th Cir. 1999), where

“there [wa]s no reasonable strategy” for failing to present additional testimony to

corroborate the defense’s theory. It arguably would have been a “reasonable trial

tactic” not to present testimony on the bathroom lock from family members and a

close acquaintance because their credibility “could have been at issue.” United

States v. Harden, 846 F.2d 1229, 1232 (9th Cir. 1988). Moreover, although

Passalacqua alleged it was possible the victim was suffering side-effects from

Lexapro, he nowhere alleged the likelihood of that possibility or the likelihood the

side-effects actually caused her to fabricate or hallucinate the rape. Especially in

light of Passalacqua’s own expert’s statement that Lexapro can sometimes improve


                                            3
judgment, it was arguably reasonable not to pursue testimony on the side-effects of

Lexapro. See Harrington v. Richter, 562 U.S. 86, 108 (2011) (“An attorney need

not pursue an investigation that would be fruitless . . . .”).

      It also would have been reasonable to conclude counsel’s failure to introduce

testimony on the bathroom lock and Lexapro did not “undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Defense counsel vigorously cross-

examined the victim and exposed substantial inconsistencies in her testimony, then

catalogued those inconsistencies at closing, stressing how her testimony was

irreconcilable with other evidence. The jury nevertheless credited the victim’s

testimony; moreover, other evidence corroborated the key details that she had

fellated Passalacqua and cried loudly. In these circumstances, that counsel failed

to add relatively minor or speculative impeachment evidence about the bathroom

lock and Lexapro arguably did not prejudice the defense. See Davis v. Woodford,

384 F.3d 628, 642 (9th Cir. 2004) (“[I]t is almost impossible to believe that a jury

– already aware that [the witnesses’] credibility was an issue – would have decided

the guilt phase differently had it known [the witness] lied [about a minor

incident].”).

      AFFIRMED.




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