Alvarez v. Foulk

MEMORANDUM *** Eduardo Alvarez appeals the dismissal of his petition for habeas relief under 28 U.S.C. § 2254 . We review de novo, Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), and affirm. Alvarez was granted a certificate of ap-pealability on two questions: (1) whether the prosecutor’s questions and argument at his trial unconstitutionally drew attention to Alvarez’s decision to invoke his right to remain silent under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976); and (2) whether he is entitled to relief under a related claim for ineffective assistance of counsel. 1. The prosecutor’s questions and closing argument were improper under Doyle , Even so, the district court correctly denied relief because the state court could reasonably have held that the prosecutor’s conduct did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)). To the extent that the prosecutor’s questions called the jury’s attention to Alvarez’s post-arrest silence, they did so in the context of a broader, permissible argument based on Alvarez’s delay in turning himself in and his failure to make any mitigating or exculpatory statements prior to his arrest. Taken as a whole, the evidence against Alvarez was also strong. See id. at 639 , 113 S.Ct. 1710 (addressing a similar factual scenario); see also Jenkins v. Anderson, 447 U.S. 231, 240 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980). 2. We “need not determine whether counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. 668, 697 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Even if it was, Alvarez cannot prevail because the California courts could reason *679 ably have concluded that there was no prejudice; the likelihood of a different result at trial was not substantial. See Harrington v. Richter, 562 U.S. 86, 105, 111-12 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.