                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 14 2012

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



                           FOR THE NINTH CIRCUIT


MANUEL GOMEZ LOPEZ,                              No. 08-17319

              Petitioner - Appellant,            D.C. No. 2:03-cv-00543-JAM-
                                                 DAD
  v.

D. L. RUNNELS and ATTORNEY                       MEMORANDUM*
GENERAL FOR THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


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

                     Argued and Submitted October 17, 2012
                            San Francisco, California

Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.

       Manuel Gomez Lopez appeals from the district court’s denial of his habeas

petition challenging his state conviction on two counts of making terrorist threats



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
in violation of California Penal Code § 422 (1999). Lopez asserts that: (1) the

evidence was insufficient to support his conviction for making a terrorist threat

against his coworker; (2) the exclusion of evidence that his coworker had a history

of mental illness violated his Sixth Amendment right to confront witnesses; (3) the

erroneous admission of evidence of a prior bad act rendered his trial fundamentally

unfair; and (4) the ineffective assistance of his counsel denied him due process due

to cumulative errors. Lopez filed a timely notice of appeal. We review his request

for relief under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254(d).

      1. The sufficiency of the evidence is determined “by whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under AEDPA a federal court may

only grant relief if the state court unreasonably applied the principles underlying

Jackson. See Juan H. v. Allen, 408 F.3d 1262, 1274 n.12 (9th Cir. 2005). Even if

Lopez’s statement “I’m going to get you” is ambiguous, his repetition of the threat,

his prior statements as to his dangerousness, and his subsequent statements were

more than sufficient to allow the jury to find him guilty of making a terrorist threat.

      2. Although a defendant has a right under the Sixth Amendment to cross-

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examine a witness against him, this right is not unlimited. Davis v. Alaska, 415

U.S. 308, 316 (1974). The California Court of Appeal reasonably determined that

his coworker’s history of mental illness was not relevant to either her subjective

sustained fear from Lopez’s threat or the objective reasonableness of her fear. This

decision was not “so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Accordingly, Lopez has not shown that he is entitled to relief on his claim under

the Sixth Amendment.

      3. We do not review questions of state evidence law, but consider “whether

the admission of the evidence so fatally infected the proceedings as to render them

fundamentally unfair.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.

1991). The trial court admitted Lopez’s former roommate’s testimony not as

evidence of propensity to commit a crime, but as rebutting Lopez’s testimony that

he was a “nice guy.” Lopez has not cited any Supreme Court case limiting the use

of such evidence in rebuttal, and, in Estelle v. McGuire, 502 U.S. 62, 75 n.5

(1991), the Court declined to create a constitutional barrier to admitting prior

crimes as evidence of propensity. Lopez has not carried his burden of showing that

the admission of his former roommate’s testimony denied him a fair trial.

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      4. To prevail on a claim of ineffective assistance of counsel, Lopez must

show “that counsel’s representation fell below an objective standard of

reasonableness,” and was “prejudicial to the defense.” Strickland v. Washington,

466 U.S. 668, 688, 692 (1984). Lopez claimed that counsel was ineffective in

failing to: (a) reasonably investigate the law in seeking to admit evidence of his

coworker’s mental illness; (b) adequately defend against the admission of evidence

of a prior bad act; and (c) request that his manager’s testimony regarding Lopez’s

uncle be stricken or the jury admonished. None of the claims is persuasive. Trial

counsel vigorously sought to admit evidence of his coworker’s mental illness, and

there is no indication that any further investigation or argument would have made a

difference. Assuming that counsel could have more strenuously objected to the

admission of Lopez’s roommate’s testimony, Lopez has not presented any

constitutional argument mandating the exclusion of such evidence on rebuttal.

Finally, because the trial court sustained trial counsel’s objection to his manager’s

testimony, any further request to strike the testimony or for an admonishment

would have focused the jury’s attention on the unwanted testimony. Lopez has

failed carry his burden of showing ineffective assistance of trial counsel.

      The district court’s denial of Lopez’s habeas petition is AFFIRMED.




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