Miguel Garcia, Jr. v. R. Horel

MEMORANDUM

A California jury convicted Miguel Garcia, Jr. of first-degree murder and unlawful firearm possession. After the district court denied his federal habeas petition, we granted him a certificate of appealability (“COA”) on three issues. 28 U.S.C. § 2253 . We consider them in turn, and then address his uncertified issue.

I

Garcia’s trial counsel stipulated to, and did not request a limiting instruction in connection with, certain testimony by prosecution witness Robert Zapien. On redirect examination Zapien stated that, while the two men were cellmates, Garcia had callously recounted having earlier shot a child. Garcia asserts that this violated his Sixth Amendment right to effective assistance of counsel and his right to due process of law.

A

To prevail on an ineffective assistance claim, Garcia “must demonstrate a reasonable probability that, but for coun sel’s unprofessional errors, the result of the proceeding would have been different.” Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir.2012) (citation and internal quotation marks omitted). Because AEDPA applies, that “likelihood of a different result must be substantial, not just conceivable.” Harrington v.…