Gonzalez v. Calderon

81 F. App'x 923

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2003
• Docket: No. 03-55384
• Status: Published

Opinion

MEMORANDUM

**

Rafael Gonzalez appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his 1995 California state conviction for murder and related offenses. We have jurisdiction under 28 U.S.C. § 2253. Reviewing de novo the district court’s denial of a habeas petition, Mendez v. Small, 298 F.3d 1154, 1157-58 (9th Cir.2002), we affirm.

Gonzalez contends that his due process rights were violated when the trial court denied a motion to recuse the entire district attorney’s office after voir dire, when it discovered that District Attorney Otero had represented him in two prior cases as a juvenile. We are unpersuaded.

Gonzalez has made no attempt to rebut the state court’s factual findings that Otero had only assisted “marginally” in voir dire and that his prior representation of Gonzalez was brief. See 28 U.S.C. § 2254(e)(1). Moreover, Gonzalez has failed to show how he was prejudiced in any way by being prosecuted by someone else in Otero’s office. See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (reviewing trial error for “substantial and injurious effect” on the jury’s verdict).

Finally, Gonzalez has not identified any Supreme Court authority requiring recusal of an entire district attorney’s office on these facts. Accordingly, the district court properly denied Gonzalez’s petition. See Garvin v. Farmon, 258 F.3d 951, 954 (9th Cir.2001) cert. denied 535 U.S. 990, 122 S.Ct. 1546, 152 L.Ed.2d 471 (2002); 28 U.S.C. § 2254(d).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.