Ruben Gomez v. GARY SANDOR, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Lee H. Rosenthal, U.S. District Judge for the Southern**
District of Texas, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN GOMEZ,
Petitioner - Appellant,
v.
GARY SANDOR, Warden; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
No. 10-56876
D.C. No. 3:09-cv-02750-WQH-
PCL
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted November 10, 2011
Pasadena, California
Before: TALLMAN and MURGUIA, Circuit Judges, and ROSENTHAL, District**
Judge.
Ruben Gomez, a California state prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus. He contends that the state trial court’s
FILED
DEC 08 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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decision to exclude third-party culpability evidence on hearsay grounds violated
his constitutional rights under the Sixth and Fourteenth Amendments.
We review de novo the district court’s decision to deny a 28 U.S.C. § 2254
habeas petition. Moses v. Payne, 555 F.3d 742, 750 (9th Cir. 2009). Gomez
argues that the California Court of Appeal’s decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1).
The state court’s decision was neither contrary to, nor an unreasonable
application of, federal law as set forth in Chambers v. Mississippi, 410 U.S. 284
(1973). Unlike the excluded statements in Chambers, which were “in a very real
sense self-incriminatory and unquestionably against [the declarant’s] interest[,]” id.
at 301, the excluded portion of the statement here—that the declarant, Marco
Moedano, acted “before anybody could do anything”—did not clearly inculpate
Moedano. It lacked the assurance of trustworthiness that such self-inculpation
provides. And unlike the statement in Green v. Georgia, 442 U.S. 95, 96–97
(1979) (per curiam), which the trial court excluded in its entirety, here the trial
court admitted the clearly self-inculpatory portion of Moedano’s statement, in
which Moedano admitted that he alone shot the victim.

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Additionally, the excluded portion of Moedano’s out-of-court statement was
not “critical” to Gomez’s defense. Chambers, 410 U.S. at 302. Gomez’s defense
theory was that although he and other gang members had been “lookin’ to blast
some” rival gang members earlier in the evening, that activity had ended, and
Gomez was hanging out with Moedano and others when the victim unexpectedly
appeared from around the corner and Moedano suddenly shot the victim. The jury
heard a tape-recorded conversation in which Gomez and Moedano both said that
the victim’s appearance was “unexpected” and in which Moedano admitted that he
ran after and shot the victim ten or eleven times. The jury also heard an eyewitness
testify that there was only one shooter and that no one else at the scene moved
during the brief attack. The excluded portion of the statement, that Moedano acted
“before anybody could do anything,” was cumulative of other evidence that the
jury did hear. In addition, the excluded portion of the statement did not clearly or
directly exculpate Gomez. For these reasons, the excluded portion of the statement
was not critical to his defense. Cf. id. at 294 (concluding that the defense was “far
less persuasive” without the excluded evidence, which directly exculpated the
defendant). There was no Sixth Amendment violation in excluding it from
evidence at trial.

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The district court properly concluded that the California court’s decision was
neither contrary to, nor an objectively unreasonable application of, federal law.
See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
AFFIRMED.

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