Eduardo Alvarez v. FRED FOULK, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO ALVAREZ,
Petitioner-Appellant,
v.
FRED FOULK, Warden,
Respondent-Appellee.
No. 15-17394
D.C. No. 2:14-cv-00029-JKS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Submitted July 13, 2017**
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and FOGEL,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jeremy D. Fogel, Senior United States District Judge
for the Northern District of California, sitting by designation.
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Eduardo Alvarez appeals the dismissal of his petition for habeas relief under
28 U.S.C. § 2254. We review de novo, Lopez v. Thompson, 202 F.3d 1110, 1116
(9th Cir. 2000) (en banc), and affirm.
Alvarez was granted a certificate of appealability on two questions:
(1) whether the prosecutor’s questions and argument at his trial unconstitutionally
drew attention to Alvarez’s decision to invoke his right to remain silent under
Doyle v. Ohio, 426 U.S. 610 (1976); and (2) whether he is entitled to relief under a
related claim for ineffective assistance of counsel.
1. The prosecutor’s questions and closing argument were improper under
Doyle. Even so, the district court correctly denied relief because the state court
could reasonably have held that the prosecutor’s conduct did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). To the extent that the prosecutor’s questions
called the jury’s attention to Alvarez’s post-arrest silence, they did so in the
context of a broader, permissible argument based on Alvarez’s delay in turning
himself in and his failure to make any mitigating or exculpatory statements prior to
his arrest. Taken as a whole, the evidence against Alvarez was also strong. See id.
at 639 (addressing a similar factual scenario); see also Jenkins v. Anderson, 447
U.S. 231, 240 (1980).

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3
2. We “need not determine whether counsel’s performance was
deficient.” Strickland v. Washington, 466 U.S. 668, 697 (1984). Even if it was,
Alvarez cannot prevail because the California courts could reasonably have
concluded that there was no prejudice; the likelihood of a different result at trial
was not substantial. See Harrington v. Richter, 562 U.S. 86, 105, 111-12 (2011).
AFFIRMED.

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