NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIK HUNG LE, No. 18-56434

Petitioner-Appellant, D.C. No. 3:16-cv-02302-WQH-RNB v.

M. E. SPEARMAN, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted October 20, 2021** Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District Judge.

In February 2010, a jury convicted Petitioner-Appellant Erik Le of murder,

attempted premeditated murder, discharging a firearm from a car, and assault with

* 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 Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. a semi-automatic firearm. Mr. Le was sentenced to prison for 96 years to life. After

an unsuccessful direct appeal in state court, Mr. Le filed a federal habeas petition.

The district court denied the petition, and Mr. Le appealed. We affirm.

We review (1) de novo the district court’s denial of a habeas petition and (2)

for clear error any factual findings made by the district court. See Martinez v. Cate,

903 F.3d 982, 991 (9th Cir. 2018). As the parties agree, the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) applies here. AEDPA bars re-

litigation of any habeas claims that have been adjudicated on the merits in state

court, unless the state court adjudication “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) resulted in a

decision that 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)(1)–(2).

The petitioner has the burden of showing that the state court decision is objectively

unreasonable. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Mr. Le asserts four grounds for relief. First, he argues that the government

committed prosecutorial misconduct through misrepresentations to the court at

trial. The government incorrectly accused defense counsel of asking a witness

several inflammatory questions and thereby violating an in limine ruling regarding

a witness’s prior conviction. But the in limine ruling was not as restrictive as

2 government counsel represented and defense counsel had not asked the

inflammatory questions—the referenced testimony had come during the

government’s examination of another witness. On direct appeal, the California

Court of Appeal found that even if the government’s accusations constituted

prosecutorial misconduct, “any conceivable error, misconduct or deficiency were

harmless by any standard.” Although the government’s comments were sloppy and

may even deserve condemnation, the Court of Appeal’s conclusion is nonetheless

reasonable because the comments were made outside the jury’s presence and did

not “so infect[] the trial with unfairness as to make the resulting conviction a denial

of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

Second, Mr. Le argues that the trial court erred by granting the government’s

request for a curative jury instruction based on the false assertions made against

defense counsel. Unlike the government misstatements, the jury instruction was

presented to the jury. The court told the jury that it “may have heard some

inaccurate information regarding [a government witness’s] criminal history [during

cross-examination]. I would like to correct that, if it occurred, at this time.” Mr. Le

argues that this jury instruction cast defense counsel in a negative light by

suggesting that defense counsel was responsible for the misinformation. The Court

of Appeal rejected this argument on several grounds. Even if some of the Court of

3 Appeal’s reasoning is problematic, its conclusion that any error was harmless is

reasonable, particularly since the jury was as likely to infer that the misinformation

came from the government witness—who faced credibility issues as a gang

member and former co-defendant in the case—as from defense counsel. Mr. Le has

not shown that the Court of Appeal’s determination was “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, 562 U.S. 86,

103 (2011).

Third, Mr. Le argues that the government violated its obligations under

Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose an email sent to

the government by a government witness’s ex-girlfriend that criticized the

witness’s credibility. The Court of Appeal concluded that there was no Brady

violation because Mr. Le could not show that the government suppressed the email

or that Mr. Le suffered any prejudice. See Strickler v. Greene, 527 U.S. 263, 282

(1999). Mr. Le’s attorney learned of the email during trial in sufficient time to use

it in his examination of the ex-girlfriend but chose not to. There was also ample

other evidence of the government witness’s propensity for lying. Mr. Le has not

shown that the Court of Appeal’s decision was unreasonable.

Finally, Mr. Le argues that he had ineffective assistance of counsel. One

defense theory asserted at trial was that two other witnesses had committed the

4 alleged crimes instead of Mr. Le and his co-defendant. But defense counsel did not

ask for a jury instruction regarding third-party culpability. Applying Strickland v.

Washington, 466 U.S. 668 (1984), the Court of Appeal reasonably determined that

Mr. Le was not prejudiced by this failure. The jury was properly instructed on

other related issues, including instructions on the presumption of innocence, the

burden of proof, and reasonable doubt. The record shows that the defense argued to

the jury that individuals other than the defendants committed the charged crimes.

The jury still convicted Mr. Le. There is no basis to conclude that a third-party

culpability instruction would have changed this result.

AFFIRMED.

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