Joaquin Leon Padin v. A. A. Lamarque

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAQUIN LEON PADIN,
Petitioner - Appellant,
v.
A. A. LAMARQUE,
Respondent - Appellee.
No. 08-16884
D.C. No. 5:99-cv-21172-RMW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted December 7, 2009
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LUCERO, ** Circuit
Judge.
Petitioner Joaquin Leon Padin appeals the federal district court’s denial of
his petition for writ of habeas corpus challenging his state court conviction for
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 The parties are familiar with the facts of this case and we repeat them here
only as necessary.
2
second-degree murder. This court has jurisdiction pursuant to 28 U.S.C. § 2253,
and we affirm the judgment of the district court.1
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
allows for habeas relief only if the state court’s decision was contrary to or
unreasonably applied clearly established federal law as determined by the Supreme
Court, or 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)(1),(2).
Padin contends that the kite should not have been admitted at trial because it
directly implicated him and was not redacted to omit all reference to his identity.
Although the Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) held
that in certain circumstances an admission by a codefendant could not be admitted
in a joint trial, in Richardson v. Marsh, 481 U.S. 200 (1987), the court indicated
that the admission must expressly implicate the defendant. Here, although the kite
referred to Padin’s identity and his knowledge of the murder, the kite did not assert
that Padin participated in the murder. The Court of Appeal’s determination that the
kite did not directly implicate Padin was not unreasonable.

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3
Padin’s second contention alleges that his counsel was ineffective in failing
to request a limiting instruction and failing to ask for a curative instruction
subsequent to the prosecutor’s rebuttal argument which improperly urged the jury
to use the kite against Padin. Pursuant to Strickland v. Washington, 466 U.S. 668
(1984), to prevail on a claim of ineffective assistance of counsel, Padin must show
that: (1) counsel’s performance was so deficient that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment, and (2) “the
deficient performance prejudiced the defense” such that “counsel’s errors were so
serious as to deprive the defendant of a fair trial . . .” 466 U.S. at 687. Here,
Padin’s allegations are not supported by the record. Padin’s trial counsel objected
to the admission of the kite and to the prosecutor’s closing statements.
Furthermore, the trial court admonished the jury to disregard the prosecutor’s
comments during her rebuttal argument, reiterating that the kite could not be
considered as evidence against Padin. Thus, the Court of Appeal’s denial of
Padin’s claim of ineffective assistance of counsel was reasonable.
AFFIRMED.

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