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Villasenor v. Spearman

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 20-16792 (9th Cir. Oct. 20, 2022)

Opinion

20-16792

10-20-2022

GERARDO VILLASENOR, Petitioner-Appellant, v. M. ELIOT SPEARMAN, Warden, Warden, High Desert State Prison, Respondent-Appellee.


NOT FOR PUBLICATION

Submitted October 18, 2022

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Appeal from the United States District Court for the Eastern District of California No. 2:16-cv-03044-JAM-CKD John A. Mendez, District Judge, Presiding

Before: WALLACE, S.R. THOMAS, and M. SMITH, Circuit Judges.

MEMORANDUM

Gerardo Villasenor appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. This court granted a certificate of appealability to consider whether the admission of his custodial statements at trial in violation of Miranda v. Arizona, 384 U.S. 436 (1966), was harmless error. We have jurisdiction under 28 U.S.C. § 2253 and review the district court's decision denying the section 2254 petition on that issue de novo. Holgerson v. Knowles, 309 F.3d 1200, 1200 (9th Cir. 2002). We affirm.

We have jurisdiction to consider Villasenor's habeas challenge only to one of his two convictions. Villasenor is "in custody" under both of his two concurrent sentences and may pursue habeas relief as to either. See Peyton v. Rowe, 391 U.S. 54, 67 (1968); see also Benton v. Maryland, 395 U.S. 784, 787-88 (1969) (holding the Court had jurisdiction over habeas challenge to one conviction even though "reversal of that conviction would not require the [s]tate to change the terms of petitioner's confinement" due to other unchallenged conviction).

Admission of Villasenor's statements at trial in violation of Miranda was harmless error. Because the state court determined that the error was harmless, we will not grant relief unless Villasenor meets both the test outlined in the Supreme Court's decision in Brecht v. Abrahamson, 507 U.S. 619 (1993), and the one Congress prescribed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Brown v. Davenport, 142 S.Ct. 1510, 1517 (2022). Under AEDPA, the state court's harmlessness determination was not unreasonable because a fairminded jurist could agree with the state court that the error was harmless beyond a reasonable doubt due to other evidence of Villasenor's guilt. 28 U.S.C. § 2254(d)(1); Davis v. Ayala, 576 U.S. 257, 269 (2015). Because Villasenor has not satisfied AEDPA, we need not consider whether he satisfies the requirements of Brecht. See Sansing v. Ryan, 41 F.4th 1039, 1051 (9th Cir. 2022).

We decline to consider Villasenor's alternative ineffective assistance of counsel argument which is not within the scope of the certificate of appealability. 28 U.S.C. § 2253(c); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) ("Under AEDPA, the scope of review in a habeas case is limited to those issues specified in the certificate of appealability[.]").

AFFIRMED.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Villasenor v. Spearman

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 20-16792 (9th Cir. Oct. 20, 2022)
Case details for

Villasenor v. Spearman

Case Details

Full title:GERARDO VILLASENOR, Petitioner-Appellant, v. M. ELIOT SPEARMAN, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 20, 2022

Citations

No. 20-16792 (9th Cir. Oct. 20, 2022)