Paul Ott v. Kelly Harrington, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL OTT,
Petitioner - Appellant,
v.
KELLY HARRINGTON, WARDEN
Respondent - Appellee.
No. 09-56811
D.C. 2:08-cv-08302-ODW-DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted December 6, 2012
San Francisco, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Paul Ott challenges the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The case is reviewed under the
deferential standards set forth in the Antiterrorism and Effective Death Penalty Act
of 1996.
FILED
JAN 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
The facts are known to the parties. Ott argues that his statement to the
police, obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), was
involuntary, and therefore inadmissible at trial for impeachment purposes.
Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960). Even if Ott’s statement were
found involuntary, his claim fails because he cannot show the admission of his
statement had a substantial and injurious effect on the jury’s verdict. See Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993). Had the prosecution refrained from
using Ott’s statement to impeach him, the jury still would have been persuaded by
extensive evidence against him, including the testimonies of other female victims;
physical evidence pinning him to the murder and oral copulation; the absence of
significant dissimilarity between Ott’s theory of self-defense in his statement to the
police and that which he later offered on the stand; and Ott’s own admissions on
the stand that he killed the victim. Moreover, Ott’s statement was in fact not
couched as an admission of guilt but as a justification of his act. The California
Court of Appeal did not act unreasonably in denying relief. See 28 U.S.C. §
2254(d).
We therefore hold that Ott is not entitled to federal habeas relief. The
district court’s denial of the petition is AFFIRMED.

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