Roy Porter v. Patrick Glebe , 713 F. App'x 694 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY PORTER, No. 16-35647
Petitioner-Appellant, D.C. No. 2:15-cv-01666-RSM
v.
MEMORANDUM*
PATRICK R. GLEBE,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted February 9, 2018**
Seattle, Washington
Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.
Roy Porter (“Porter”) appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition challenging his conviction for one count of first-degree
assault and one count of unlawful possession of a firearm. We affirm.
We have jurisdiction to consider certified habeas claims pursuant to 28
*
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).
U.S.C. §§ 1291 and 2253. The district court certified two issues for appeal: first,
whether the prosecutor’s misstatement of an officer’s testimony on bullet trajectory
amounted to prosecutorial misconduct; and second, whether trial counsel’s failure
to object to the prosecutor’s misstatement constituted ineffective assistance of
counsel. We review the district court’s denial of each claim de novo. See
Robertson v. Pichon, 849 F.3d 1173, 1181 (9th Cir. 2017).
1. Porter’s claim of prosecutorial misconduct is without merit. A “prosecutor’s
improper comments will be held to violate the Constitution only if they ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v.
Wainwright, 477 U.S. 168, 181 (1986)). Even assuming that the prosecutor’s
misstatement of Officer Wilson’s testimony on the trajectory of the bullet violated
the Constitution, Porter has failed to establish prejudice.
“[I]t is important as an initial matter to place the remark in context.” Greer
v. Miller, 483 U.S. 756, 766 (1987) (internal quotation marks and alterations
omitted). Although the prosecutor misstated Officer Wilson’s testimony in her
rebuttal to trial counsel’s closing argument, she was also careful to emphasize that
the jury had an obligation to rely on the “actual evidence,” as opposed to the facts
as she recounted them. Furthermore, the trial court instructed the jury to disregard
any attorney’s “remark, statement, or argument” unsupported “by the evidence or
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the law in [the court’s] instructions.” As the district court correctly noted, jury
instructions can cure improper statements made by the prosecution. See Hein v.
Sullivan, 601 F.3d 897, 916 (9th Cir. 2010). Porter has provided “no reason to
believe that the jury in this case was incapable of obeying the curative
instructions.” Greer, 483 U.S. at 766 n.8.
We note, too, that the evidence was more than capable of supporting the
inference that Porter shot at the victim, Darryl Peterson (“Peterson”).1 Peterson
testified, consistent with his prior statement, that he saw Porter pull out a gun, aim
it in his direction, and pull the trigger. Officer Wilson confirmed that Peterson’s
version of the trajectory was possible. Accordingly, the Washington Supreme
Court Commissioner did not unreasonably apply clearly established law in denying
Porter’s petition for post-conviction relief.
2. Porter’s claim that trial counsel rendered ineffective assistance by failing to
object to the prosecutor’s misstatement is similarly meritless. Our review of state
court decisions on ineffective assistance of counsel is “doubly deferential.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Washington Supreme
Court Commissioner concluded that Porter had failed to show deficient
1
We deny Porter’s request to take judicial notice of a Smithsonian article
summarizing scientific research on the likelihood of dodging a bullet at close
range. Our review is “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011).
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performance and prejudice, both of which are required to state a claim of
ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Porter has failed to show that the Commissioner’s conclusions were
“necessarily unreasonable.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Trial counsel’s primary theory at trial was that someone else was responsible
for shooting Peterson. Given this approach, trial counsel’s decision not to object to
the prosecutor’s misstatement is understandable. The omission could very well
have been strategic, and under Supreme Court precedent, we must presume that it
was. See Strickland, 466 U.S. at 690; see also United States v. Necoechea, 986
F.2d 1273 (9th Cir. 1993) (concluding that “the failure to object during closing
argument and opening statements is within the wide range of permissible
professional legal conduct.” (internal quotation marks omitted)).
Porter has also failed to show prejudice. In light of the evidence introduced
at trial by the State, it is not reasonably probable that a single objection would have
altered the trial’s outcome. See Pinholster, 563 U.S. at 198. Accordingly, the
district court correctly concluded that “the Commissioner reasonably concluded
that trial counsel’s failure to object was not prejudicial.”
AFFIRMED.
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