NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 26 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR ALVAREZ CARRILLO, No. 23-3559 D.C. No. Petitioner - Appellant, 3:22-cv-07776-JSC v.

MEMORANDUM*

GISELLE MATTESON; PEOPLE OF THE

STATE OF CALIFORNIA,

Respondents - Appellees.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, District Judge, Presiding

Submitted August 22, 2025** San Francisco, California

Before: CHRISTEN, LEE, and BRESS, Circuit Judges.

Oscar Alvarez Carrillo appeals the district court’s denial of his habeas petition

under 28 U.S.C. § 2254. Carrillo was convicted in California state court of first

degree murder and sentenced to 30 years to life in prison. Carrillo did not dispute

* 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). that he killed Salvador Hernandez and instead claimed self-defense. Carrillo argues

that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668

(1984), for failing to object to statements by the prosecution which he claims (1)

accused defense counsel of fabricating his version of events and (2) diluted the

burden of proof. The California Court of Appeal affirmed Carrillo’s conviction on

direct appeal and denied his state habeas petition. The California Supreme Court

summarily denied Carrillo’s petition for review.

We review the district court’s decision denying § 2254 relief de novo. Bolin

v. Davis, 13 F.4th 797, 804 (9th Cir. 2021). Carrillo’s petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which bars relief

unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States,” or was “based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

1. Counsel’s performance is deficient when it falls “below an objective

standard of reasonableness . . . under prevailing professional norms.” Strickland,

466 U.S. at 688. In this case, the California Court of Appeal reasonably concluded

that trial counsel did not perform deficiently. Under AEDPA, the state court’s

decision was not “objectively unreasonable,” Bell v. Cone, 535 U.S. 685, 699 (2002),

2 23-3559 nor was it based on an unreasonable determination of the facts.

First, the California Court of Appeal reasonably determined that the

prosecutor’s reference to “[t]his version of events that’s being fabricated by the

defense” was not misconduct, such that trial counsel was not deficient in declining

to object. A prosecutor “stray[s] beyond proper advocacy” by arguing “that defense

counsel . . . fabricated evidence.” Sassounian v. Roe, 230 F.3d 1097, 1106 (9th Cir.

2000), as amended on denial of reh’g (Dec. 6, 2000). However, where a case

“essentially reduces to which of two conflicting stories is true, it may be reasonable”

to argue “that one of the two sides is lying.” United States v. Sarno, 73 F.3d 1470,

1496–97 (9th Cir. 1995) (quoting United States v. Molina, 934 F.2d 1440, 1445 (9th

Cir. 1991)).

The California Court of Appeal reasonably determined that, in context, the

prosector did not attack defense counsel personally. Instead, the prosecution argued

that Carrillo’s defense was “fabricated” in the sense that it was a product of Carrillo’s

own lies and that it was otherwise implausible and inconsistent with the evidence.

The prosecutor’s statements shortly before and after the challenged remarks

demonstrate that his comments were directed at Carrillo’s account of events, as the

prosecutor argued that Carrillo’s claim of self-defense “makes no sense,” that the

knife allegedly held to Carrillo’s throat was “a fabrication,” and that there was no

support for “[t]his entire story of his other than it came out of [Carrillo’s] mouth.”

3 23-3559 At the end of his argument the prosecutor reiterated that “[t]he defendant’s story is

a lie.” Given these statements, it was not objectively unreasonable for the California

Court of Appeal to conclude the prosecutor’s remarks were proper, such that defense

counsel was not deficient in not objecting.

Second, the California Court of Appeal reasonably determined that the

prosecutor did not dilute the beyond a reasonable doubt burden of proof by implying

that the jury should convict if the prosecutor’s account was “reasonable” and

Carrillo’s was “unreasonable.” The prosecutor told the jury that its job was to weigh

the evidence and to determine what was “reasonable” and “unreasonable,” and that

in considering circumstantial evidence jurors should “accept only reasonable

conclusions and reject any that are unreasonable.” Given the court’s repeated

instructions regarding the reasonable doubt standard, the California Court of Appeal

reasonably concluded that the jury would not have understood the prosecutor’s

remarks as lessening the burden of proof, and, thus, that defense counsel was not

deficient for failing to object.

2. The California Court of Appeal was also not objectively unreasonable in

concluding that, even if defense counsel acted deficiently in failing to object to the

prosecution’s remarks, Carrillo was not prejudiced because the evidence

overwhelmingly established his guilt. Prejudice requires “a reasonable probability

that . . . the result of the proceeding would have been different.” Strickland, 466

4 23-3559 U.S. at 694. The evidence indicated that Carrillo, who was 28 and weighed 190

pounds, pinned Hernandez, who was 63 and weighed 159 pounds, to the bedroom

mattress and stabbed him repeatedly. Hernandez was cut or stabbed at least 75 times.

Numerous witnesses saw the attack. Carrillo’s claim that he was ambushed by

Hernandez and another man was corroborated only by his cousin, who did not

mention this third man on the night of the attack. The jury was able to consider

Carrillo’s self-defense theory, and there is no basis to conclude that striking the

prosecution’s remarks would have affected the result. Accordingly, the California

Court of Appeal’s prejudice determination was not contrary to or an unreasonable

application of Strickland, nor was it based on an unreasonable determination of the

facts.

AFFIRMED.

5 23-3559