Jose Luna v. A. Malfi

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JAN 28 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSE LUNA, No. 10-55711

Petitioner - Appellant, D.C. No. 2:07-cv-00148-DMG-

AGR

v.

A. J. MALFI, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted July 7, 2014 Pasadena, California

Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**

California state prisoner Jose Luna appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 petition. We review de novo a district

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Dana M. Sabraw, District Judge for the U.S. District Court for the Southern District of California, sitting by designation. court’s decision to deny a § 2254 petition, see Emery v. Clark, 643 F.3d 1210,

1213 (9th Cir. 2011), and we…

concurring:

I concur in the memorandum disposition. I write separately to highlight two matters that further explain the prosecutor’s testimony and why Luna is not entitled to habeas relief.

First, the prosecutor’s testimony was neither planned nor volunteered; rather, it arose in response to Detective Lowe’s unexpected disavowal of Alarcon’s statement that someone other than Luna and Picado, ie., “Wicked,” was seen with a gun around the time of the shooting. Seizing on the opportunity, Luna’s counsel made clear he would not stipulate that Alarcon mentioned “Wicked” had a gun: “I won’t stipulate those things were said. I’m going to call Mr. Enomoto to the stand.” That was a principled tactical decision, as testimony by Enomoto about “Wicked” would accentuate the potentially exculpatory evidence that “Wicked” was the other gunman, not Luna, and it would discredit Lowe’s testimony on that point. The prosecutor’s testimony was therefore not only invited, but essentially forced by Luna’s lawyer. See Darden v. Wainwright, 477 U.S. 168, 182 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986) (“the idea of ‘invited response’ is used not to excuse improper comments, but to determine their effect…

MEMORANDUM **

California state prisoner Jose Luna appeals from the district court’s judgment *941 denying his 28 U.S.C. § 2254 petition. We review de novo a district court’s decision to deny a § 2254 petition, see Emery v. Clark, 643 F.3d 1210, 1213 (9th Cir.2011), and we affirm.

1. Luna asserts he was deprived of due process when the attorney prosecuting his case took the stand during his trial and gave testimony that supported the credibility of a witness who, having previously identified Luna as one of two shooters who killed one man and injured another, later recanted and refused to identify Luna in court. We hold that, even assuming, for the sake of argument, a violation of clearly established law, see Parker v. Matthews, — U.S.-, 132 S.Ct. 2148 , 183 L.Ed.2d 32 (2012) (per curiam), Luna has not shown the prosecutor’s testimony “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (internal quotation marks omitted).

First, Detective Lowe, who conducted Alarcon’s pretrial interviews, testified as to Alarcon’s prior identifications of Luna and Picado as the…