Joseph Cornett v. Domingo Uribe, Jr.

MEMORANDUM ** Joseph Cornett appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir.2005), and we affirm. 1. The California Court of Appeal reasonably applied clearly established federal law when it held the trial court’s failure to give a requested no-adverse-inference instruction, in violation of Cornétt’s constitutional rights under Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), was nonstructural error. The court of appeal’s conclusion was consistent with the decisions of this and other courts, see United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008); Lewis v. Pinchak, 348 F.3d 355, 358 (3d Cir.2003); United States v. Burgess, 175 F.3d 1261, 1266-67 (11th Cir.1999); United States v. Brand, 80 F.3d 560, 568 (1st Cir.1996); Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir.1985); Richardson v. Lucas, 741 F.2d 753, 754-55 (5th Cir.1984), and was reasonable in light of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which the Supreme Court held Griffin error is nonstructural. 2. The district court also properly concluded the Carter error was not prejudicial under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015), we may grant relief only if the state court’s harmlessness determination under Chapman “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded agreement.” Id. at 2199 (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)) (internal quotation marks omitted). That standard is not satisfied here. First, there was strong evidence of guilt, including Demaurie Williams’ statement to the police, the gunshot residue on Cornett’s hands and testimony by the victim and three of his friends implicating Cornett as the shooter. Anthony (Jordan) Murphy, the victim, thought the gunshot came from the front seat. Deon Glasper saw the driver making threats and flashing a gun. Shelby Green and Paul Smith both identified the driver as the shooter. Although there were inconsistencies in the testimony, the witnesses never wavered on their crucial testimony linking the driver to the gun and the shooting. Second, neither the prosecution nor the trial court commented on Cor-nett’s failure to testify. Each side referred to the other’s failure to call logical witnesses, but neither party drew the jury’s attention to Cornett’s decision not to take the stand. Third, Cornett’s trial counsel presented a poor defense, failing to exploit the potential weaknesses in the prosecution’s case. In sum, because we cannot say the California Court of Appeal *628 applied Chapman’s harmless error standard in an objectively unreasonable manner, we affirm the denial of habeas relief. See id. at 2198. AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.