FILED

NOT FOR PUBLICATION

AUG 20 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR GARCIA, No. 14-55753

Petitioner-Appellant, D.C. No. 2:13-cv-00659-PA-RZ v.

JAMES ROBERTSON, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted August 13, 2019** Pasadena, California

Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges.

Arthur Garcia appeals the district court’s order denying his 28 U.S.C. § 2254

petition challenging his conviction for conspiracy to commit murder. Because the

* 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). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. parties are familiar with the facts, we repeat them only as necessary to resolve this

appeal. We have jurisdiction pursuant to 28 U.S.C. § 2253, and our review is

governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214. We affirm.

1. Garcia first argues that California Department of Justice Special

Agent Scott Barker’s testimony was so prejudicial that it deprived him of a fair

trial, and that the California Court of Appeal made an unreasonable determination

of the facts in concluding otherwise. On direct appeal, the California Court of

Appeal determined that any prejudice was effectively cured by the trial court’s

limiting instruction and that the trial court did not abuse its discretion by denying a

motion for a mistrial. Garcia argues that the California Court of Appeal severely

understated the impact of Agent Barker’s testimony, and thus made an

unreasonable determination of the facts.

As an initial matter, the State argues that the law of the case doctrine

precludes our consideration of the merits of this claim. In a prior and separate civil

habeas proceeding, another panel of our court denied a co-defendant’s identical

claim about Agent Barker’s testimony. See Polanco v. Ducart, 643 F. App’x 628,

629–30 (9th Cir. 2016). The law of the case doctrine applies when “the appeal of

one co-defendant is decided prior to the appeal of the other co-defendant, if both

2 were convicted at the same trial.” United States v. Schaff, 948 F.2d 501, 506 (9th

Cir. 1991) (analyzing a direct appeal). It follows that “[t]he law of the case

doctrine states that the decision of an appellate court on a legal issue must be

followed in all subsequent proceedings in the same case.” Alaimalo v. United

States, 645 F.3d 1042, 1049 (9th Cir. 2011). Here, Garcia’s civil habeas

proceeding is separate from his co-defendant’s habeas proceeding. The law of the

case doctrine therefore does not apply because Garcia’s habeas appeal is not the

“same case” as his co-defendant’s habeas appeal.

On the merits, we deny Garcia’s first claim because we conclude that the

California Court of Appeal’s determination was reasonable. “[A] federal court

may not second-guess a state court’s fact-finding process unless, after review of

the state-court record, it determines that the state court was not merely wrong, but

actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004),

overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th

Cir. 2014). The brevity of Agent Barker’s testimony, the length of time between

the defendants’ incarceration and the victim’s death, and the trial court’s

particularly conscientious curative instruction support the state court’s denial of

Garcia’s claim. We “presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it, unless there is an

3 ‘overwhelming probability’ that the jury will be unable to follow the court’s

instructions, and a strong likelihood that the effect of the evidence would be

‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)

(citation omitted). Given the foregoing facts, we conclude that there was not an

“overwhelming probability” that the jury could not abide by the trial court’s

carefully-worded limiting instruction, despite the evidence that the defendants were

part of a gang that directed criminal activity from within prisons.

2. Garcia next argues that the prosecutor committed Griffin error during

rebuttal argument because he commented on the defendants’ silence after their

arrests. See Griffin v. California, 380 U.S. 609 (1965). The trial court denied the

defense motion for a mistrial, instructed the jury to disregard the remarks on the

defendants’ silence, and reminded the jury that the defendants had a constitutional

right not to be compelled to testify. Garcia argues that because the Griffin error

was apparent, appellate counsel’s failure to raise the issue on direct appeal

constituted ineffective assistance of counsel. The California Supreme Court

summarily denied this ineffective assistance of counsel claim without comment or

citation.

To prevail on his claim for habeas relief, Garcia must show that the

California Supreme Court’s summary denial was an unreasonable application of

4 Strickland v. Washington, 466 U.S. 668 (1984). See Harrington v. Richter, 562

U.S. 86, 98 (2011) (“Where a state court’s decision is unaccompanied by an

explanation, the habeas petitioner’s burden still must be met by showing there was

no reasonable basis for the state court to deny relief.”). To show ineffective

assistance of counsel, a defendant must demonstrate that his counsel’s conduct fell

below an objective standard of reasonableness, and that there was a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different. See Strickland, 466 U.S. at 688, 694. As to Garcia’s claim that

appellate counsel was ineffective for failing to raise Griffin error, due process

“prohibits a prosecutor from commenting on a defendant’s decision not to

testify[,]” and “a prosecutor’s indirect comment violates Griffin only if it is

manifestly intended to call attention to the defendant’s failure to testify, or is of

such a character that the jury would naturally and necessarily take it to be a

comment on the failure to testify.” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir.

2006) (internal quotation marks omitted). This type of error warrants reversal

where the prosecutor’s “comment is extensive, where an inference of guilt from

silence is stressed to the jury as a basis for the conviction, and where there is

evidence that could have supported acquittal.” Id. (internal quotation marks

omitted).

5 We conclude that the California Supreme Court’s decision to deny Garcia’s

ineffective assistance of counsel claim was reasonable. The transcript does not

show that the prosecutor directly commented on Garcia’s decision not to testify,

nor does it show that he intended to call attention to this decision. Even assuming

a Griffin error occurred, it is reasonable to conclude that the error was harmless

because: (1) the prosecutor’s remark relating to defendants’ silence was brief; (2)

the prosecutor did not stress defendants’ silence as a basis for the conviction

because he was emphasizing the defendants’ bonds; and (3) the jury was presented

with evidence of wiretapped conversations involving Garcia, which Agent Barker

(who had extensive experience working with gang related crimes) interpreted as

showing an attempt on the victim’s life. See Hovey, 458 F.3d at 912. Moreover,

the trial court’s careful instruction—which we presume the jury followed, Greer,

483 U.S. at 766 n.8—underscores that the California Supreme Court could have

reasonably determined that any Griffin error was harmless. Therefore, the

California Supreme Court’s decision was not an unreasonable application of

Strickland because it is reasonable to conclude that appellate counsel was not

ineffective for failing to raise a meritless claim.

AFFIRMED.

6