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applying Darden to a habeas petitioner's argument that the prosecutor improperly vouched for two witnesses
Summary of this case from Marks v. DavisOpinion
No. 05-55790.
Argued and Submitted June 5, 2007.
Filed June 27, 2007.
Tony Leavon Curtis, Crescent City, CA, pro se.
Thomas C. Hsieh, DAG, Office of the California Attorney General, Los Angeles, CA, for Respondents-Appellees.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-03-3825-SVW.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Tony Leavon Curtis, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing the district court's decision de novo, Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003), we affirm the denial of habeas relief.
Three issues have been certified for appeal: (1) whether the prosecutor improperly vouched for the credibility of two witnesses during trial, and if so, whether there was resulting prejudice; (2) whether trial counsel rendered ineffective assistance in failing to object to the prosecutor's comments as vouching; and (3) whether appellate counsel rendered ineffective assistance in failing to argue the issue of vouching on direct appeal. Because no state court adjudicated the merits of Curtis's prosecutorial vouching claim, we consider de novo whether a due process violation occurred. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). As to his remaining claims, we consider, under the Anti-terrorism and Effective Death Penalty Act, whether the state court's adjudication was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1).
Curtis has not shown that the purported vouching "so infected the trial with unfairness" as to make his resulting conviction a denial of due process. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The challenged statements were largely responsive to defense counsel's aggressive attacks on the witnesses' credibility. See United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (holding that vouching was not plain error, in part, because it came as an "invited response"). Significantly, the trial court's instructions to the jury mitigated any risk of unfairness posed by the prosecutor's comments. See Darden, 477 U.S. at 182, 106 S.Ct. 2464. Even if error occurred, it did not have a substantial and injurious effect on the jury's determination of the verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
As to Curtis's contention that his trial and appellate counsel rendered ineffective assistance by failing to, respectively, object to and raise the issue of prosecutorial vouching, Curtis can establish neither counsels' deficient performance, nor resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing counsels' performance, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. Trial counsel reasonably decided not to risk trying the jury's patience by objecting to the prosecutor's comments during argument. See Young, 470 U.S. at 13, 105 S.Ct. 1038 (noting that "interruptions of arguments are matters to be approached cautiously"). Likewise, appellate counsel's failure to raise prosecutorial vouching on direct appeal was reasonable, as this claim offered only a slight chance of success. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (noting that "the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy"). Finally, because the record falls short of establishing that prosecutorial vouching prejudiced Curtis, counsels' purported omissions in this regard do not undermine our confidence in the jury's verdict. Accordingly, we hold that the district court properly concluded that the state court's denial of Curtis's ineffective assistance claims was not contrary to, and did not involve an unreasonable application of federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).