Jose Passalacqua v. Mike McDonald

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE PASSALACQUA,
Petitioner - Appellant,
v.
MIKE MCDONALD,
Respondent - Appellee.
No. 14-56674
D.C. No. 2:12-cv-02430-AG-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted May 3, 2016
Pasadena, California
Before: FISHER, M. SMITH and NGUYEN, Circuit Judges.
Jose Passalacqua appeals the district court’s denial of his federal habeas
petition collaterally challenging his conviction for kidnapping and raping a 16-
year-old girl. He contends he received ineffective assistance because defense
counsel failed to present evidence that the victim both lied about locking herself in
FILED
MAY 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Passalacqua’s bathroom and could have been suffering side-effects from her
Lexapro medication. The state argues Passalacqua’s claim is untimely and fails on
the merits. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
We review de novo the denial of a habeas petition, see Bribiesca v. Galaza,
215 F.3d 1015, 1018 (9th Cir. 2000), including whether the petition was timely,
see Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Deference to the state
court’s determination is required under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d)(1). The California
Supreme Court’s denial of Passalacqua’s petition without holding an evidentiary
hearing meant the court determined that, assuming his factual allegations were
true, Passalacqua was not entitled to relief. People v. Duvall, 9 Cal. 4th 464, 474-
75 (1995). Under AEDPA, we cannot grant relief unless that determination was
unreasonable. See Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).
1. The ineffective assistance claim was timely. The parties agree the
claim is not time-barred if Passalacqua receives equitable tolling for the period
between the state trial court’s denial of his habeas petition and his appeal of that
ruling. So long as he “acted diligently in the matter,” Passalacqua was entitled to
equitable tolling for this period because he was unaware the state court had denied
his petition. Ramirez, 571 F.3d at 997 (quoting Woodward v. Williams, 263 F.3d
2

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1135, 1143 (10th Cir. 2001)). Passalacqua acted diligently by checking the status
of his petition about six months after filing it, see Fue v. Biter, 810 F.3d 1114,
1117 (9th Cir. 2016) (“[C]ourts have generally determined that a prisoner who
delayed fewer than ten months before inquiring into the status of his case acted
with sufficient diligence . . . .”), and timely filing an appeal after receiving notice
of the denial.
2. The California Supreme Court reasonably could have concluded
counsel’s performance did not “f[a]ll below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). This case is
distinguishable from Hart v. Gomez, 174 F.3d 1067, 1071 (9th Cir. 1999), where
“there [wa]s no reasonable strategy” for failing to present additional testimony to
corroborate the defense’s theory. It arguably would have been a “reasonable trial
tactic” not to present testimony on the bathroom lock from family members and a
close acquaintance because their credibility “could have been at issue.” United
States v. Harden, 846 F.2d 1229, 1232 (9th Cir. 1988). Moreover, although
Passalacqua alleged it was possible the victim was suffering side-effects from
Lexapro, he nowhere alleged the likelihood of that possibility or the likelihood the
side-effects actually caused her to fabricate or hallucinate the rape. Especially in
light of Passalacqua’s own expert’s statement that Lexapro can sometimes improve
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judgment, it was arguably reasonable not to pursue testimony on the side-effects of
Lexapro. See Harrington v. Richter, 562 U.S. 86, 108 (2011) (“An attorney need
not pursue an investigation that would be fruitless . . . .”).
It also would have been reasonable to conclude counsel’s failure to introduce
testimony on the bathroom lock and Lexapro did not “undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Defense counsel vigorously cross-
examined the victim and exposed substantial inconsistencies in her testimony, then
catalogued those inconsistencies at closing, stressing how her testimony was
irreconcilable with other evidence. The jury nevertheless credited the victim’s
testimony; moreover, other evidence corroborated the key details that she had
fellated Passalacqua and cried loudly. In these circumstances, that counsel failed
to add relatively minor or speculative impeachment evidence about the bathroom
lock and Lexapro arguably did not prejudice the defense. See Davis v. Woodford,
384 F.3d 628, 642 (9th Cir. 2004) (“[I]t is almost impossible to believe that a jury
– already aware that [the witnesses’] credibility was an issue – would have decided
the guilt phase differently had it known [the witness] lied [about a minor
incident].”).
AFFIRMED.
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