Joseph Antonio Resvaloso v. J. SOTO, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH ANTONIO RESVALOSO,
Petitioner-Appellant,
v.
J. SOTO, Warden,
Respondent-Appellee.
No. 16-56427
D.C. No.
5:14-cv-00026-CJC-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted March 5, 2018**
Pasadena, California
Before: Reinhardt and Nguyen, Circuit Judges, and Settle,*** District Judge.
Petitioner-Appellant Resvaloso appeals the district court’s order denying his
petition for a writ of habeas corpus. His first trial ended in mistrial. After a second
FILED
MAR 13 2018
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.

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trial, the jury found Resvaloso guilty of second degree murder and further found
that he personally discharged a firearm from a moving vehicle. Resvaloso argues
that his conviction was obtained in violation of Harrison v. United States, 392 U.S.
219 (1968), because he was effectively compelled to testify at the first trial as a
result of the trial court’s erroneous ruling that his unlawfully-obtained statement
was admissible, and at the second trial as a result of that trial court’s ruling that his
previous trial testimony was voluntary and thus admissible even if his statement
was not. We review under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), and we affirm.
1. The California Court of Appeal’s determination that Resvaloso “chose to
testify voluntarily and to introduce his recorded statement as part of his defense” in
his first trial was not an objectively unreasonable determination of the facts under 28
U.S.C. § 2254(d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). First,
Resvaloso himself explained why he took the stand in both trials: “he wanted to
explain what had happened.” Although his counsel emphasized at the hearings on the
motions to suppress that the only reason her client would take the stand would be in
response to the trial courts’ rulings on admissibility, it was not objectively
unreasonable for the state court to defer to Resvaloso’s explanation over his counsel’s.
Second, it was not unreasonable to conclude that Resvaloso’s preemptive decision to
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take the stand was a “tactical decision” because “the prosecution did not introduce any
evidence of defendant’s prior testimony or his recorded statement in its case-in-chief
in either the first or the second trial.” Third, “substantial circumstantial evidence
supported the jury’s conviction,” and Resvaloso conceded in his state-court brief that
“[a]side from pointing to the insufficiency of the People’s case, his only real defense
was self defense, which required his testimony to establish.” The Harrison
exclusionary rule does not apply where the defendant “may have been motivated to
take the witness stand in the first place only by reason of the strength of the lawful
evidence adduced against him.” Harrison, 392 U.S. at 222. Because the California
Court of Appeal’s findings are “supported by substantial evidence in the state court
record,” Hibbler, 693 F.3d at 1146, we cannot say that the state court was objectively
unreasonable in concluding that Resvaloso testified voluntarily.
2. We also cannot say that the California Court of Appeal unreasonably
applied Harrison under 28 U.S.C. § 2254(d)(1). Unlike in Harrison, the
prosecution here did not introduce the unlawfully-obtained statement in its case-in-
chief, thereby giving rise to a new and different legal issue. Even if there were
good reasons to extend Harrison’s exclusionary rule to that new legal question, it
was not an “unreasonable application” of that case for the California Court of
Appeal to decline to do so. See Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir.
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2016) (citing White v. Woodall, 134 S. Ct. 1697, 1706 (2014)).
AFFIRMED
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