Opinion
No. 11-17722 D.C. No. 3:08-cv-05051-SI
02-22-2013
MAURICE V. VASQUEZ, Petitioner - Appellant, v. TOM FELKER, Warden, High Desert State Prison, Respondent - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted February 11, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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San Francisco, California
Before: D.W. NELSON, REINHARDT, and M. SMITH, Circuit Judges.
Petitioner-Appellant Maurice Vasquez appeals the district court's denial of his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
We assume for purposes of argument, just as the California Court of Appeal did, that Vasquez's Confrontation Clause rights were violated. Nonetheless, any error was harmless because the prosecutor's questions did not have a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Accordingly, we affirm the district court's denial of habeas relief.
We decline to expand the certificate of appealability to include Vasquez's ineffective assistance of counsel claim because Vasquez failed to make a substantial showing of the denial of a constitutional right based on his trial counsel's performance. See 28 U.S.C. § 2253(c)(2).
AFFIRMED; MOTION TO EXPAND COA DENIED.