                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 09 2011

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




                            FOR THE NINTH CIRCUIT



CARLOS CORONA,                                   No. 09-56717

              Petitioner - Appellant,            D.C. No. 3:07-cv-02117-BTM-
                                                 NLS
  v.

V. M. ALMAGER, Warden; BILL                      MEMORANDUM *
LOCKYER, Attorney General,

              Respondents - Appellees.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                        Argued and Submitted June 7, 2011
                              Pasadena, California

Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and GWIN, District
Judge.**

       Petitioner-Appellant Carlos Corona appeals the denial of his petition for writ

of habeas corpus. He contends that the state trial court erroneously denied his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James S. Gwin, District Judge for the U.S. District
Court for Northern Ohio, sitting by designation.
motion under Batson v. Kentucky, 476 U.S. 79 (1986); that the prosecutor

suppressed material impeachment evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972); and that the

trial court violated due process by denying his mid-trial request for a continuance.

We have jurisdiction under 28 U.S.C. § 2253. We affirm.

       The prosecutor charged Corona with the attempted murder of Kenneth

Guyton, with special allegations concerning the use of a firearm for the benefit of a

street gang. During jury selection the trial court denied Corona’s Batson motion

after the prosecutor used peremptory challenges to strike jurors 28 and 29, the only

two African-Americans in the jury venire. At trial, Guyton testified that on the

night of August 13, 2003, he rode with Corona and Jose Yanez in Yanez’s two-

door black Bronco. Guyton testified that after Corona ordered him out of the

Bronco, Corona shot him five times because of an outstanding drug debt Guyton

owed Jose Yanez’s sister, Monica Yanez. After the State rested its case, the trial

court denied Corona’s motion for a continuance and motion for a new trial based

on Corona’s claim that the prosecutor suppressed the address of an impeachment

witness. The jury convicted Corona and the trial court sentenced him to 42 years-

to-life in state prison.




                                          2
      We review de novo the district court’s denial of a petition for writ of habeas

corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc).

Because Corona’s federal habeas petition was filed after the effective date of

AEDPA, relief can be granted only for claims that comply with 28 U.S.C. §

2254(d): if the “state court’s decision ‘was contrary to’ federal law then clearly

established in the holdings of [the Supreme] Court; or that it ‘involved an

unreasonable application of’ such law; or that it ‘was based on an unreasonable

determination of the facts’ in light of the record before the state court.”

Harrington v. Richter, --- U.S. ----, ----, 131 S. Ct. 770, 785 (2011) (quoting 28

U.S.C. § 2254(d)) (citations omitted). We review the California Court of Appeal’s

decision in Corona’s direct appeal as the state court’s last reasoned decision.

Williams v. Cavazos, --- F.3d ----, No. 07-56127, 2011 WL 1945744, at *6 (9th

Cir. May 23, 2011) (citing Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991)).

      First, Corona argues that the prosecutor acted with a racially-discriminatory

purpose when he exercised a peremptory challenge against juror 28.1 The

prosecutor stated that the primary reason he struck juror 28 was because the juror

had a strong accent and the prosecutor inferred a lack of English proficiency.

Difficulty with English-speaking ability can be a race-neutral reason to exercise a


        1
            On appeal, Corona does not address the peremptory challenge to juror 29.

                                           3
peremptory strike. See United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993).

The burden therefore moved to Corona to persuade the state court that the

prosecution’s explanation was pretextual. Batson, 476 U.S. at 98. Corona points

out that the trial court was the first to advance juror 28’s accent as a reason to

exercise a peremptory strike. Corona further argues that the prosecutor failed to

ask follow-up questions regarding juror 28’s English proficiency. Although these

circumstances allow an inference of pretext, the record shows that the state trial

court and the prosecutor both had considerable difficulty understanding juror 28’s

accent. The record, therefore, does not compel the conclusion that the trial court

and state court of appeal “had no permissible alternative but to reject the

prosecutor's race-neutral justifications.” Rice v. Collins, 546 U.S. 333, 341 (2006).

Nor does the record show that the trial court or the state court of appeal “acted

contrary to clearly established [Supreme Court] law in recognizing and applying

Batson’s burden-[shifting] framework.” Rice, 546 U.S. at 342.

      Next, Corona advances a Brady/Giglio claim. A witness who lived close to

the location of the shooting told police investigators that immediately after hearing

gunshots, she saw a white “Cholo-type” car with four doors pick up a running man

and drive away. The prosecutor provided Corona with the witness’s police

statement and address. Corona hired an investigator months before trial but the


                                            4
investigator was unable to contact the witness. The week before the trial, the

prosecutor discovered that the witness had moved to Arizona and learned her new

address and phone number. A week later, after jury selection, Corona’s

investigator finally discovered that the witness had moved and the prosecutor

disclosed to Corona her new address and phone number. After Corona learned that

would take one month to complete the out-of-state subpoena process, he moved for

a continuance. The trial court denied Corona’s motion.

      In order to establish a Brady/Giglio violation, a defendant must show that

the prosecutor, either willfully or inadvertently, suppressed material evidence

favorable to the defense and the suppression was prejudicial. Strickler v. Greene,

527 U.S. 263, 281–82 (1999) . Evidence is material and prejudicial “only if there

is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome” of trial. United

States v. Bagley, 473 U.S. 667, 682 (1985).

       The witness’s testimony about observing a four-door white car after the

shooting does not directly contradict Guyton’s testimony that he and Corona were

traveling in a two-door black Bronco before the shooting. Nor does it undermine

Guyton’s repeated identifications of Corona as the shooter. And even if the


                                          5
prosecution disclosed the witness’s Arizona address on the eve of the trial instead

of a week later, Corona has not shown a reasonable probability that he would have

secured the testimony in time for trial—the out-of-state subpoena required a month

to process—or that the mid-trial motion to continue would have succeeded. The

state court of appeal’s conclusion that Corona failed to show that the testimony

was material or that its suppression was prejudicial is not an unreasonable

application of clearly established law. See Bagley, 473 U.S. at 682.

      Finally, Corona claims that the state court violated his due process rights

when it declined to grant him a continuance. See Ungar v. Sarafite, 376 U.S. 575,

589 (1964). The defense investigator did nothing more than repeatedly visit the

witness’s prior residence for five months and perform one inadequate database

search a month before trial. On this record, the state court of appeal reasonably

concluded that the defense investigator should have been more diligent in

searching for the witness and that a one-month delay was unreasonable in light of

the lack of diligence by Corona.

      AFFIRMED.




                                          6
