                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 11 2012

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




                            FOR THE NINTH CIRCUIT



MIGUEL GARCIA, Jr.,                              No. 09-17848

              Petitioner - Appellant,            D.C. No. 1:07-CV-01105-VRW

  v.
                                                 MEMORANDUM *
ROBERT A. HOREL, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                           Vaughn R. Walker, Presiding

                     Argued and Submitted December 5, 2012
                            San Francisco, California

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

       A California jury convicted Miguel Garcia, Jr. of first-degree murder and

unlawful firearm possession. After the district court denied his federal habeas

petition, we granted him a certificate of appealability (“COA”) on three issues. 28

U.S.C. § 2253. We consider them in turn, and then address his uncertified issue.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

      Garcia’s trial counsel stipulated to, and did not request a limiting instruction

in connection with, certain testimony by prosecution witness Robert Zapien. On

redirect examination Zapien stated that, while the two men were cellmates, Garcia

had callously recounted having earlier shot a child. Garcia asserts that this violated

his Sixth Amendment right to effective assistance of counsel and his right to due

process of law.

                                           A

      To prevail on an ineffective assistance claim, Garcia “must demonstrate a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Runningeagle v. Ryan, 686 F.3d 758, 775

(9th Cir. 2012) (citation and internal quotation marks omitted). Because AEDPA

applies, that “likelihood of a different result must be substantial, not just

conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011). The jury was

instructed to view Zapien’s testimony “with caution and close scrutiny.” There

was substantial other evidence of Garcia’s guilt, including statements by another

witness to authorities that Garcia confessed to the killing. Had the challenged

testimony been excluded, there is not a substantial probability that the verdict




                                            2
would have been different. See Ben-Sholom v. Ayers, 674 F.3d 1095, 1101–03 (9th

Cir. 2012).

                                          B

      Garcia’s claim that Zapien’s testimony was impermissible character

evidence and inflammatory such that it violates the Due Process Clause also fails.

In Jammal v. Van de Kamp, we reiterated that the “issue is not whether

introduction of [the evidence] violated state law evidentiary principles, but whether

the trial court committed an error which rendered the trial so arbitrary and

fundamentally unfair that it violated federal due process.” 926 F.2d 918, 920 (9th

Cir. 1991) (alteration in original) (quoting Reiger v. Christensen, 789 F.2d 1425,

1430 (9th Cir. 1986)). As the state court found, the prosecution introduced the

challenged testimony to rehabilitate Zapien, whom Garcia had impeached as

having a self-interested motive for testifying. Garcia has not shown that the state

court’s resolution of this issue “involved an unreasonable application of,” or “was

contrary to” federal law clearly established in the holdings of the Supreme Court.

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

2254(d)(1)).




                                          3
                                            II

      In his third certified issue, Garcia claims that the failure of the trial court to

administer a California jury instruction on accomplice testimony abridged his due

process rights. He cannot demonstrate that this alleged error, held harmless by the

state court, “so infected the entire trial that the resulting conviction violates due

process.” Clarke v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting Estelle v.

McGuire, 502 U.S. 62, 72 (1991)).

                                           III

      We decline to expand the COA to include whether the exclusion of

unspecified evidence that a third-party had a motive to commit the murder violated

Garcia’s constitutional right to present a complete defense. See Holmes v. South

Carolina, 547 U.S. 319, 324–25 (2006). The application of the California

evidentiary rule calling for an offer of proof to this case neither contradicts “the

governing law set forth in Supreme Court cases,” nor “confronts a set of facts

materially indistinguishable from those at issue in a decision of the Supreme

Court.” Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004).

      AFFIRMED.




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