United States v. 2006-01-11 | 04-17167 | MANCEBO VADAMS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MARK MANCEBO,
Petitioner-Appellant, No. 04-17167
v. D.C. No.
 DERRAL G. ADAMS; ATTORNEY CV-01-05600-JKS
GENERAL OF THE STATE OF OPINION
CALIFORNIA; E. MEYERS,
Respondents-Appellees. 
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
October 19, 2005—San Francisco, California
Filed January 12, 2006
Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson
607

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COUNSEL
Carrie Leonetti, Federal Public Defender’s Office, Fresno,
California, for defendant-appellant Mark Mancebo.
Brian Alvarez, Office of the California Attorney General,
Fresno, California, for the respondents-appellees.
OPINION
D.W. NELSON, Senior Circuit Judge:
Mark C. Mancebo brings this petition to challenge the
denial by the federal district court of his petition for a writ of
habeas corpus. Mancebo is currently serving an indeterminate
term sentence of fifteen years to life for his conviction for
second-degree murder, with an additional eight years stayed
on his conviction for kidnaping. Mancebo argues that he was
denied his constitutionally guaranteed right to effective assis-
tance of counsel when, at his original trial, his counsel neither
objected to nor moved to exclude a portion of a recorded con-
versation with police regarding his decision not to take a poly-
graph examination. Mancebo also argues that the district court
609 MANCEBO v. ADAMS

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did not commit error in holding an evidentiary hearing to
examine his ineffective assistance of counsel claim.
We have jurisdiction pursuant to 28 U.S.C. § 2253. This
court reviews a district court’s denial of a writ of habeas cor-
pus de novo. Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir.
2004). Pursuant to the Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), we can only overturn Mance-
bo’s conviction if the state court decision affirming his
conviction was “an unreasonable application of . . . clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d). AEDPA creates a
high burden for a petitioner like Mancebo, which we find he
has failed to meet.
In determining whether Mancebo has received effective
assistance of counsel, the “clearly established federal law, as
determined by the Supreme Court of the United States” in this
case is the test derived from Strickland v. Washington, 466
U.S. 668 (1984). See Dows v. Wood, 211 F.3d 480, 484 (9th
Cir. 2000). In Strickland, the Supreme Court decided that for
an ineffective assistance of counsel claim to succeed, a party
must demonstrate that the performance of his or her attorney
“fell below an objective standard of reasonableness,” Strick-
land, 466 U.S. at 688, and that “there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
[1] It is an issue of first impression in this circuit whether
the failure to prevent the introduction of improper polygraph
evidence can serve as grounds for reversing a conviction pur-
suant to AEDPA. We hold that when the polygraph evidence
played a very small role in the trial, it is not harmful, and
therefore the conviction must stand.
[2] Mancebo argues that he was denied his right to effective
assistance of counsel at his original trial because his counsel
failed to object to the state’s introduction of the recording of
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a conversation Mancebo had with police, during which
Mancebo indicated his desire not to take a polygraph examina-
tion.1 We do not focus on the performance of Mancebo’s
counsel, though, because a court “need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered . . . as a result of the alleged deficiencies,”
Strickland, 466 U.S. at 697, and we find the prejudice inquiry
dispositive.
In other contexts, when similar evidence has been found to
be prejudicial, the objectionable evidence had much more
attention drawn to it than in this case. In Guam v. Veloria, 136
F.3d 648 (9th Cir. 1998), we held that a potential error (in that
case, references to post-arrest silence) was prejudicial because
it was the “entire testimony [of a particular witness].” Id. at
652. Likewise, in Crotts v. Smith, 73 F.3d 861 (9th Cir. 1996),
a case discussing the prejudicial nature of a defendant’s state-
ment about “killing a cop,” we stressed the frequency of the
references to this comment during several rounds of witness
questioning. Id. at 864. See also People v. Hogan, 647 P.2d
93, 110 n.12 (Cal. 1982) (in bank) (finding prejudice where
judge specifically alerted jury to prejudicial nature of poly-
graph evidence).
[3] By contrast, in this case the polygraph issue played only
a minor role at the trial. The reference to the polygraph exam-
ination occupies a few sentences in the written transcript and
a brief moment of the long entire recorded conversation. The
recorded conversation itself was never raised in the testimony
of any witness. Neither the judge nor either party made any
reference at all to the polygraph evidence when the recorded
conversation was played during the trial.
1Since the evidence produced during the evidentiary hearing almost
exclusively addresses deficient performance rather than prejudice—and is
therefore immaterial to our prejudice discussion—we need not address the
propriety of the district court decision to hold an evidentiary hearing.
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[4] When polygraph evidence has played a small role in a
trial, as it did here, it has not been deemed prejudicial. See
Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005)
(“Matheson’s . . . isolated comment regarding the results of
his polygraph exam did not infect the trial”) (emphasis
added)); United States v. Blaze, 143 F.3d 585, 594 (10th Cir.
1998) (stating that a “single unsolicited mention of a poly-
graph” did not warrant a new trial); United States v. Tedder,
801 F.2d 1437, 1445 (4th Cir. 1986) (indicating that a “lim-
ited, inadvertent reference” to a polygraph test did not support
a prejudice determination); People v. Cox, 70 P.3d 277, 298-
99 (Cal. 2003) (stating that a single improper question asked
by the prosecutor was not prejudicial because it was not part
of “a pattern of conduct”).
[5] In addition to the small role the polygraph evidence
played in the trial, there is sufficient other evidence support-
ing Mancebo’s conviction to preclude us from finding “there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. For example, the evi-
dence clearly indicates that Mancebo was angry the night of
the murder because his girlfriend had terminated their rela-
tionship, and he was angry that the eventual murder victim,
Philip Anthony Rios, engaged in a sexual relationship with
another woman Mancebo had been interested in for several
years. Mancebo had stated several times that he wanted to
murder Rios. Furthermore, several associates and even an
eyewitness testified that Mancebo murdered Rios. Mancebo
questions the truthfulness of some of the witnesses in this
case, but he does not contest substantial portions of the damn-
ing evidence against him.
[6] Because of the small role that the polygraph evidence
played and because of the weight of the other evidence,
Mancebo is not able to meet the high burden created by
AEDPA for this court to overturn his conviction.
Affirmed.
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