Logman v. Kernan

Full title: William LOGMAN, Petitioner-Appellant, v. P.L. KERNAN, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 21, 2001

5 F. App'x 586 (9th Cir. 2001)

248 F.3d 1171

Opinion

5 Fed.Appx. 586 (9th Cir. 2001) William LOGMAN, Petitioner-Appellant, v. P.L. KERNAN, Warden, Respondent-Appellee. No. 00-16069. D.C. No. CV-96-02411-MJJ. United States Court of Appeals, Ninth Circuit. February 21, 2001

Submitted February 16, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Prisoner filed a habeas corpus petition. The United States District Court for the Northern District of California, Martin J. Jenkins, J., denied petition, and prisoner appealed. The Court of Appeals held that: (1) claim regarding prosecutor's characterization of defense expert during closing argument was procedurally defaulted, and (2) neither prosecutor's statement during closing argument nor omission of defendant's proposed jury instruction violated due process.

Affirmed.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding.

Before ALARC ON, KOZINSKI, and HAWKINS, Circuit Judges.

Page 587.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

William Logman appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court's denial of a habeas petition, Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000).

First, Logman's claim regarding the prosecutor's characterization of the defense expert during closing argument is procedurally defaulted because he failed to make contemporaneous objections in the trial court. Bargas v. Burns, 179 F.3d 1207, 1214 (9th Cir.1999) (where the state court decision rests on alternate grounds, one invoking a state procedural bar and the other addressing the merits, the state procedural ground is considered independent and precludes habeas corpus review). Second, any flaws in the prosecutor's cross-examination of a defense expert were adequately controlled by the trial judge's curative instructions. Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Finally, neither the prosecutor's statement during closing argument, nor the omission of Logman's proposed jury instruction so infected the entire trial that his resulting conviction violated due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir.1993).

AFFIRMED.