                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 29 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MISAEL QUINTANA,                                 No. 14-17202

              Petitioner - Appellant,            D.C. No. 3:13-cv-05819-CRB

 v.
                                                 MEMORANDUM*
CONNIE GIPSON, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                     Argued and Submitted October 21, 2015
                              Stanford, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.

      California state prisoner Misael Quintana appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 petition for habeas corpus. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Quintana seeks relief from his in absentia conviction of aggravated sexual

assault of a child under fourteen, in violation of California Penal Code section 269,

and four counts of lewd or lascivious conduct on a child by duress, in violation of

California Penal Code section 288(b)(1). Quintana contends that insufficient

evidence supported the duress finding underlying his convictions, and that his

counsel rendered ineffective assistance.1

       The prosecution presented evidence that Quintana undressed his daughter

and induced sexual acts with “a direct or implied threat of . . . retribution” if she

reported the abuse, People v. Cochran, 126 Cal. Rptr. 2d 416, 420 (Ct. App.

2002)—specifically, by threatening his daughter with the loss of visitation and

physical punishment by her mother. Viewing this evidence in the light most

favorable to the prosecution, it was not objectively unreasonable for the California

Court of Appeal to conclude that there was sufficient evidence from which a

rational juror could infer duress and convict Quintana. See 28 U.S.C. § 2254;

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Quintana also alleges he received ineffective assistance because counsel

failed to obtain and introduce (1) a psychological examination showing that

       1
          We decline to expand the certificate of appealability to include Quintana’s cumulative
prejudice argument because Quintana has failed to make a “substantial showing of the denial of
a constitutional right” with respect to this claim. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,
529 U.S. 473, 484 (2000).
                                                 2
Quintana’s personality did not fit the profile of a child molester, (2) favorable

character witness testimony, or (3) a polygraph examination. Even if we assume

that counsel’s performance fell below the constitutional level of effectiveness, the

California court’s conclusion that this evidence was not reasonably likely to have

changed the outcome of Quintana’s trial was neither “contrary to” nor an

“unreasonable application of” Strickland v. Washington, 466 U.S. 668 (1984), nor

was it based on an “unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d).

      The district court’s denial of Quintana’s petition for habeas corpus is

therefore AFFIRMED.




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