NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 13 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR M. MERAZ, No. 18-55862

Petitioner-Appellant, D.C. No. 2:16-cv-01955-JAK-KS v.

CHRISTIAN PFEIFFER, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted December 8, 2022 Pasadena, California

Before: KELLY,** M. SMITH, and COLLINS, Circuit Judges.

Petitioner Victor Meraz appeals the district court’s denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties’ familiarity with

the record is assumed. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

a habeas petitioner must show that the last decision of the state court was “contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “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). “[T]his standard is

difficult to meet,” and “even a strong case for relief does not mean that the state

court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86,

102 (2011); see also Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014) (“The

deferential standard imposed under AEDPA cloaks a state court’s determination

with reasonableness[.]”). Furthermore, where a state court does not give reasons for

its denial of habeas relief, the federal habeas court “must determine what arguments

or theories . . . could have supported[] the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”

Harrington, 562 U.S. at 102. The parties do not dispute that AEDPA deference

applies in this case. We review a district court’s denial of habeas relief de novo.

Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020).

1. The California Supreme Court reasonably determined that defense

counsel was not constitutionally ineffective for failing to (A) challenge the

2 admission of Petitioner’s confession to jailhouse informant Ismael Cano or (B)

interview or call on Petitioner’s former attorney to testify at trial. An attorney is

constitutionally ineffective where his performance was so deficient that it “fell

below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S.

668, 688 (1984). To secure habeas relief under AEDPA, a petitioner “must also

show that the state court adjudication [of his IAC claim] was objectively

unreasonable.” Brown v. Uttecht, 530 F.3d 1031, 1033 (9th Cir. 2008). Thus, we

are “doubly deferential” in evaluating Strickland claims under AEDPA in that we

are “highly deferential” to the decisions of defense counsel as well as to the state

court’s subsequent determination about whether counsel’s performance was

deficient. See Cheney v. Washington, 614 F.3d 987, 994–95 (9th Cir. 2010).

(A) The California Supreme Court could have reasonably determined

that counsel was not deficient for failing to challenge the admission of Petitioner’s

confession on voluntariness grounds because any such challenge would have been

meritless. See Leavitt v. Arave, 646 F.3d 605, 613 (9th Cir. 2011) (“Where the

defendant claims ineffective assistance for failure to file a particular motion, he must

. . . demonstrate a likelihood of prevailing on the motion.”) (internal quotation marks

and citation omitted). Petitioner argues that his confession was involuntary under

Arizona v. Fulminante, 499 U.S. 279, 287 (1991). However, “deception does not

render confession involuntary.” United States v. Miller, 984 F.2d 1028, 1031 (9th

3 Cir. 1993) (citing Frazier v. Cupp, 394 U.S. 731, 737–39 (1969)); see also United

States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004) (“Trickery, deceit, even

impersonation do not render a confession inadmissible”). In this case, the California

Supreme Court could have reasonably concluded that Cano’s statements to

Petitioner constituted tricks meant to induce a confession by fostering a sense of trust

and a belief that Petitioner’s truthfulness could advance his position in the gang,

rather than threats meant to instill fear in Petitioner. Accordingly, the California

Supreme Court was not unreasonable in deciding that counsel’s failure to raise a

futile challenge to the confession’s admission did not render his representation

deficient. See Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019) (“[F]ailure to

raise a meritless argument does not constitute ineffective assistance.”).

(B) We likewise cannot say that the failure to investigate or call on

Petitioner’s former attorney to testify at trial was deficient under Strickland. On

appeal, Petitioner attached a declaration from his former attorney in support of his

argument that his trial attorney’s failure to interview or call on her constituted

deficient performance. However, this declaration was not presented to the district

court. “Save in unusual circumstances, we consider only the district court record on

appeal.” Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). We will not look

4 beyond the record here.1 We therefore reject Petitioner’s argument as speculative.

See United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (holding mere

speculation concerning the possible testimony of witnesses who were not called is

insufficient to prevail on an ineffective assistance claim).

2. Petitioner’s argument that his confession to Cano was involuntary, and

therefore inadmissible under the Fifth Amendment also fails. As a preliminary

matter, the parties disagree as to whether Petitioner both exhausted his standalone

Fifth Amendment voluntariness claim before the California Supreme Court and

raised it before the district court. See Robinson v. Kramer, 588 F.3d 1212, 1217 (9th

Cir. 2009) (“Habeas claims that are not raised before the district court in the petition

are not cognizable on appeal.” (quoting Cacoperdo v. Demosthenes, 37 F.3d 504,

507 (9th Cir. 1994))). However, we “must construe pro se habeas filings liberally.”

Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (citing Maleng v. Cook, 490

U.S. 488, 493 (1989)); see Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002)

(“Pro se habeas petitioners may not be held to the same technical standards as

litigants represented by counsel.”). In any event, even if Petitioner’s standalone

voluntariness claim was properly before us, it would necessarily fail for the reasons

articulated above. See supra Section 1(A).

1 We therefore grant Appellee’s motion to strike the Declaration of Rebekah Mathis from Appellant’s excerpts of record.

5 3. We also reject Petitioner’s argument that his confession was

deliberately elicited in violation of the Sixth Amendment right to counsel. See

United States v. Massiah, 377 U.S. 201, 206 (1964) (holding that the government

violates a criminal defendant’s right to counsel when it uses “his own incriminating

words, which federal agents ha[ve] deliberately elicited from him after he ha[s] been

indicted and in the absence of his counsel” as evidence at trial). A person accrues

the right to counsel under the Sixth Amendment “at or after the time that judicial

proceedings have been initiated against him, whether by formal charge, preliminary

hearing, indictment, information, or arraignment.” Brewer v. Williams, 430 U.S.

387, 398 (1977). This right is “offense specific.” McNeil v. Wisconsin, 501 U.S.

171, 175 (1991). While Petitioner was in jail and represented by counsel regarding

an unrelated crime at the time of his confession to Cano, he had not yet been charged

for the murder at issue here, so the Sixth Amendment’s prohibition on deliberate

elicitation did not yet apply as to that offense. See Maine v. Moulton, 474 U.S. 159,

180 n.16 (1985) (“Incriminating statements pertaining to other crimes, as to which

the Sixth Amendment right has not yet attached, are, of course, admissible at a trial

of those offenses.”). Accordingly, the California Supreme Court reasonably rejected

Petitioner’s Massiah claim.

4. Jorge Velasco’s statements to jailhouse informant Gilbert “Indio”

Bracknell were not testimonial within the meaning of the Sixth Amendment’s

6 Confrontation Clause. The admission of “[t]estimonial statements of witnesses

absent from trial” violates the Confrontation Clause unless “the declarant is

unavailable” and “the defendant has had a prior opportunity to cross-examine” the

declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004) (emphasis added).

However, a statement that is not testimonial in nature does not implicate the

Confrontation Clause. See Ohio v. Clark, 576 U.S. 237, 245 (2015). Under Supreme

Court precedent, “statements made unwittingly to a Government informant” and

“statements from one prisoner to another” are “clearly nontestimonial.” Davis v.

Washington, 547 U.S. 813, 825 (2006) (citing Bourjaily v. United States, 483 U.S.

171, 181–184 (1987); Dutton v. Evans, 400 U.S. 74, 87–89 (1970)). As such, it was

not unreasonable for the California Supreme Court to determine that the statement

at issue was non-testimonial, and therefore admissible under the Sixth Amendment.

Nor can Petitioner secure habeas relief on due process grounds. Petitioner

argues that the admission of Velasco’s statements rendered his “trial so

fundamentally unfair as to violate due process” because they were elicited through

coercion. However, even assuming arguendo that the statements were coerced, the

Supreme Court has never held that admission of coerced, non-testimonial statements

by an unavailable third-party declarant violates a defendant’s federal due process

rights. Accordingly, we cannot say that the California Supreme Court unreasonably

applied or acted in a manner contrary to clearly established law in denying

7 Petitioner’s due process claim.

5. Finally, no errors cumulatively rendered petitioner’s trial unfair. “[N]o

error of constitutional magnitude occurred” in this case, so “no cumulative prejudice

is possible.” Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011).

AFFIRMED.

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