                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARCOS PALOMAR,                                 No.    17–16225

                Petitioner–Appellant,           D.C. No.
                                                1:15–cv–01279–DAD–SAB
 v.

RAYMOND MADDEN, Warden,                         MEMORANDUM*

                Respondent–Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                             Submitted June 12, 2019**
                             San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.

      Petitioner Marcos Palomar, a state prisoner, appeals the denial of his petition

for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.



      *
             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 Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
      1.     The district court did not err in finding that Petitioner’s claim under

Miranda v. Arizona, 384 U.S. 436 (1966), was procedurally defaulted. The district

court found that California’s contemporaneous objection rule is both independent

and adequate. Palomar v. Madden, No. 1:15-cv-01279-DAD-SAB-HC, 2016 WL

4095965, at *5 (E.D. Cal. Aug. 2, 2016). Petitioner does not dispute that this rule

is an independent ground to bar his Miranda claim. Instead, he disputes the

adequacy of the rule. Relying on Lee v. Kemna, 534 U.S. 362 (2002), Petitioner

contends that the state appellate court’s application of the contemporaneous

objection rule was “exorbitant.” We do not reach the merits of this argument,

however, because Petitioner forfeited this argument by not presenting it to the

district court. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018). And, in any

event, Petitioner has not shown that his is one of the “exceptional cases” in which

application of the contemporaneous objection rule would “render[] the state ground

inadequate.” Lee, 534 U.S. at 885.

      Petitioner also argues that he demonstrated cause and prejudice to excuse his

default. Petitioner failed to demonstrate grounds to excuse the default. Even

assuming Palomar did not forfeit a cause–and–prejudice argument,1 he failed to


1
  Palomar stated in his pro se habeas petition that if his trial counsel failed to
preserve this Miranda claim, “counsel was ineffective under the Sixth Amendment
in failing to preserve this ground. (See Strickland v. Washington, (1984) 466 U.S.
668.)” Liberally construing a pro se litigant’s arguments, see Erickson v. Pardus,


                                          2
make the requisite showing of ineffective assistance of counsel, as explained

below.

      2.     For purposes of determining whether ineffective assistance of counsel

excuses a procedural default, we review the ineffective assistance of counsel claim

de novo. Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016); see also Dickens v.

Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc). To prevail on a claim of

ineffective assistance of counsel, Petitioner must satisfy the two–part test set forth

in Strickland. This requires showing that “counsel’s performance was deficient”

and that “the deficient performance prejudiced the defense.” Id. at 687. A

petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective

assistance of counsel, so if the court determines that a petitioner has failed to

satisfy one prong, it need not consider the other. Id. at 697.

      Petitioner argues that trial counsel rendered ineffective assistance of counsel

by failing to preserve his Miranda claim for appeal. This claim was presented to

the California Court of Appeal on direct review and denied on the merits in a

reasoned decision. Palomar, 2015 WL 1089544, at *6–8. The California Supreme

Court denied review.

      Petitioner’s claim that trial counsel provided ineffective assistance by not



551 U.S. 89, 94 (2007), this may have been enough to raise a cause and prejudice
argument.

                                           3
preserving a Miranda objection fails because his trial attorney could have

reasonably believed that an objection would have been meritless. See Lowry v.

Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (an attorney is not required to file a motion

he knows to be meritless). The Miranda warnings given by Officer Rosel were

adequate. When viewed in context, Petitioner could reasonably ascertain from the

warnings provided to him by Officer Rosel that he could retain the services of an

attorney for free. Officer Rosel testified that, at the time of arrest, he told

Petitioner in Spanish that “you have the right to have an attorney present before

they ask you questions,” and that “[i]f you cannot get a lawyer, one can be

appointed to you without payment before we ask you any questions.” (emphasis

added). These two warnings, considered in their totality, effectively

communicated to Petitioner that if he could not afford an attorney, one would be

appointed at no cost prior to questioning. Petitioner’s contention that use of the

term “can” in the warnings suggested that the right to the appointment of counsel

was somehow contingent, is unpersuasive—it does not comport with a proper

understanding of that term in this context, and it is squarely disapproved of by

numerous federal and state court decisions.

      The Supreme Court’s decision in Duckworth v. Eagan, 492 U.S. 195 (1989),

is instructive. In that case, the defendant was advised that an attorney could be

appointed “if you wish, if and when you go to court.” Id. at 198. The Supreme


                                            4
Court ruled that, when read in context, the advisement was not constitutionally

deficient. Id. at 201.

      Officer Rosel did not say anything that would have led Petitioner to believe

that his right to counsel prior to questioning was discretionary or contingent on the

approval of a request or on the lawyer’s availability. See United States v. Botello-

Rosales, 728 F.3d 865 (9th Cir. 2013).

      Moreover, just three days after Officer Rosel advised Petitioner of his

Miranda rights, Petitioner was given a second set of Miranda warnings by

Detective Chavez in Spanish. These advisements were essentially identical to

those given by Officer Rosel, except that Detective Chavez omitted the phrase

“without payment.” The omission, however, was not significant. As numerous

federal and state courts have ruled, Miranda does not require use of the term “at no

cost” where, as here, the warnings reasonably conveyed this right. See,

e.g., United States v. Soria-Garcia, 947 F.2d 900, 903 (10th Cir. 1991) (inclusion

of the term “at no cost” was unnecessary to effectuate the purpose of Miranda);

State v. Hutton, 57 Wash. App. 537, 789 P.2d 778 (1990) (Miranda does not

require that warnings specifically include advice that counsel will be appointed

“without charge” as long as warning is clear that, if defendant cannot afford

counsel, counsel will still be appointed).

      Assuming arguendo the second Miranda warnings were incomplete,


                                             5
Petitioner would still not be entitled to relief. This court, in Maguire v. United

States, 396 F.2d 327 (9th Cir. 1968), held that where a defendant is adequately

advised of his Miranda rights—as Petitioner was by Officer Rosel—there is no

Miranda violation if the defendant is later given warnings that are incomplete. Id.

at 331.

      Respondent correctly argues Petitioner received proper Miranda warnings at

the time of arrest and, in any event, a fairminded jurist could possibly agree with

the state appellate court that Petitioner was not prejudiced by the admission of his

statements. In addition to arguing that ineffective assistance of counsel should

excuse his procedural default, Petitioner also raises a stand-alone claim that his

counsel was ineffective for failing to raise his Miranda claim. Because the state

court adjudicated this claim, we review this argument under AEDPA. 28 U.S.C. §

2254(d); Harrington v. Richter, 562 U.S. 86, 100 (2011). Because this claim fails

under our de novo review, a fortiori, the state court did not unreasonably apply

Strickland in rejecting this claim. Berghuis v. Thompkins, 560 U.S. 370, 389

(2010).

      3.     The district court did not err in denying Petitioner’s claim that the

state trial court’s omission of a unanimity instruction violated his due process

rights. Petitioner argues that because “there were at least two distinct and separate

acts which could have provided the basis for liability” for Count One , the jury


                                          6
could have convicted Petitioner without agreeing on which act he committed; and

the failure to include a unanimity instruction violated his federal due process

rights. Thus, he contends that the trial court prejudicially erred in failing to

instruct the jury on unanimity for this count.

      Neither the Supreme Court nor this court has mandated a unanimity

requirement for juries in state criminal prosecutions. Recognizing a state

prisoner’s due process right to a unanimous jury verdict in a noncapital criminal

case as a matter of federal constitutional law would violate the Supreme Court’s

holding in Teague v. Lane, 489 U.S. 288, 310 (1989) prohibiting the application of

“new constitutional rules of criminal procedure” to “cases which have become

final before the new rules are announced.”

      Moreover, the state appellate court’s conclusion that Petitioner was not

prejudiced by the absence of a unanimity instruction was neither “contrary to” nor

“involved an unreasonable application of … clearly established federal law.” 28

U.S.C § 2254(d)(1). The jury resolved any credibility dispute against Petitioner

and convicted him of oral copulation upon a child 10 years of age or younger and

all other charged sex offenses. Given this credibility determination, there is no

reasonable possibility that the verdict would have been different if a unanimity

instruction had been given.

      AFFIRMED.


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