                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 02 2014

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



                            FOR THE NINTH CIRCUIT


JOSEPH MARIO ARREDONDO, Jr.,                     No. 11-57094

              Petitioner - Appellant,            D.C. No. 5:10-cv-01115-CAS-
                                                 MRW
  v.

GARY SANDOR, Warden,                             MEMORANDUM*

              Respondent - Appellee.


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

                           Submitted August 26, 2014**
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and GLEASON,
District Judge.***




        *
             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).
        ***
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      Petitioner Joseph Mario Arredondo, Jr., appeals from the district court’s

denial of his application for a writ of habeas corpus. After trial in California, Mr.

Arredondo was convicted of several counts of committing sexual acts with minors,

but he asserts on collateral review that three defects in his state-court proceedings

warrant relief from that judgment. The Antiterrorism and Effective Death Penalty

Act of 1994 (AEDPA), 28 U.S.C. § 2241 et seq., strictly circumscribes our

jurisdiction to grant a writ of habeas corpus in this case.

      First, Mr. Arredondo contends that his trial attorney’s allegedly incompetent

performance deprived him of the effective assistance of counsel. To demonstrate

constitutionally defective representation, the criminal defendant must show: (1)

that his counsel’s performance failed to satisfy an “objective standard of

reasonableness”; and (2) that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The

California Court of Appeal, which issued the last reasoned decision on the merits,

acknowledged that much of trial counsel’s allegedly deficient conduct was bizarre

and “needlessly embarrassing,” but nevertheless discerned no prejudice because of

“overwhelming” evidence of guilt. The accusers, although reluctant at first to

divulge the details of their sexual encounters with Mr. Arredondo, provided


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detailed and largely consistent accounts, corroborated in various specifics by motel

receipts and other circumstantial evidence, as well as Mr. Arredondo’s own

statements. Indeed, even the trial court—which, by misapplying Strickland,

granted Mr. Arredondo’s post-verdict motion for a new trial on the basis of

counsel’s ineffective assistance—observed that the result of the trial would not

likely have been different if Mr. Arredondo had able representation. We cannot

therefore conclude that the California court’s determination that Mr. Arredondo

suffered no prejudice from the alleged errors of trial counsel is unreasonable.

      Second, Mr. Arredondo argues that the prosecutor committed misconduct by

encroaching on allegedly privileged and otherwise inappropriate subjects during

his own and his wife’s testimony. Prosecutorial misconduct, in order to justify

relief, must have “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181

(1986). The California Court of Appeal exhaustively reviewed the trial transcripts

and found all claimed instances of impropriety fell below the legal threshold for

prosecutorial misconduct. In any event, any actual misconduct on the basis that

Mr. Arredondo has identified would scarcely have caused a “substantial and

injurious effect or influence” on the verdict given the volume of evidence against

him. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).


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      Third, Mr. Arredondo arraigns the trial court for erroneously instructing the

jury about his purportedly late disclosure of witnesses and evidence. Under Estelle

v. McGuire, instructional error under state law does not amount to a constitutional

deprivation unless it “so infected the entire trial that the resulting conviction

violates due process.” 502 U.S. 62, 72 (1991). The California Court of Appeal

noted that the trial court most likely erred by giving the jury a modified version of

CALJIC 2.28, informing the jurors of Mr. Arredondo’s allegedly untimely

disclosures and leaving it to their judgment whether and to what extent to accord

significance to such delay. Nevertheless, the state court concluded that the

abundant evidence of guilt vitiates any prejudice that Mr. Arredondo could claim

to have suffered thereby. For such reason, Mr. Arredondo cannot demonstrate that

the California court’s ruling unreasonably applied, or was contrary to, clearly

established Federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d).

      AFFIRMED.




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