                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2013

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




                            FOR THE NINTH CIRCUIT



MAURICE V. VASQUEZ,                              No. 11-17722

              Petitioner - Appellant,            D.C. No. 3:08-cv-05051-SI

  v.
                                                 MEMORANDUM *
TOM FELKER, Warden, High Desert
State Prison,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                          Submitted February 11, 2013 **
                            San Francisco, California

Before: D.W. NELSON, REINHARDT, and M. SMITH, Circuit Judges.

       Petitioner-Appellant Maurice Vasquez appeals the district court’s denial of




        *
             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).
his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.

          We assume for purposes of argument, just as the California Court of Appeal

did, that Vasquez’s Confrontation Clause rights were violated. Nonetheless, any

error was harmless because the prosecutor’s questions did not have a “‘substantial

and injurious effect or influence in determining the jury’s verdict.’” Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). Accordingly, we affirm the district court’s denial of habeas

relief.

          We decline to expand the certificate of appealability to include Vasquez’s

ineffective assistance of counsel claim because Vasquez failed to make a

substantial showing of the denial of a constitutional right based on his trial

counsel’s performance. See 28 U.S.C. § 2253(c)(2).

          AFFIRMED; MOTION TO EXPAND COA DENIED.




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