                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALEXANDER DIAZ,                                 No.    16-17064

                Petitioner-Appellant,           D.C. No. 3:15-cv-00979-JST

 v.
                                                MEMORANDUM*
JOE A. LIZARRAGA, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                           Submitted January 17, 2019**
                             San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and ADELMAN,***
District Judge.

      Alexander Diaz was convicted of attempted murder in California after the

prosecution introduced statements he made during an interrogation. Diaz petitioned


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
for a writ of habeas corpus, which the district court denied, arguing that the

admission of his statements violated his rights under Miranda v. Arizona, 384 U.S.

436 (1966). We granted a certificate of appealability and have jurisdiction under 28

U.S.C. § 2253. We affirm.

      The California Court of Appeal gave as an independent reason for its

decision that any error was harmless beyond a reasonable doubt. People v. Diaz,

No. A136143, 2014 WL 3339498, at * 11-12 (Cal. Ct. App. July 9, 2014). Under

AEDPA, this means that “a federal court may not award habeas relief under

[section] 2254 unless the harmlessness determination itself was unreasonable.”

Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) (emphasis in original) (quoting Fry v.

Pliler, 551 U.S. 112, 119 (2007)). “[A] state-court decision is not unreasonable if

fairminded jurists could disagree on its correctness.” Id. (internal quotation marks

and alteration omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).

      Assuming constitutional error here, fairminded jurists could disagree on

whether any Miranda error was harmless. There was no dispute at trial that Diaz

struck Officer Brower with a van; Diaz’s defense was that the collision was

unintentional. Diaz’s statements in the interrogation did not conflict with or

undermine that defense because he also told the interrogating officers that the

collision was an accident. The only statements that might have prejudiced Diaz

were those that the jury interpreted as lies to the interrogating officers. But to the


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extent that the jury viewed falsehoods as evidence of his guilt, Diaz had already

made overtly false statements to the police, including that he was not in the

relevant city at all, before any Miranda violation took place. This record does not

show that “the state court’s decision to reject his claim was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Id. (internal quotation

marks omitted) (quoting Harrington, 562 U.S. at 103).

      AFFIRMED.




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