James Wright, Jr. v. Robert Legrand ( 2019 )

FILED
NOT FOR PUBLICATION
NOV 04 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES WRIGHT, Jr., No. 18-16172
Petitioner-Appellant, D.C. No.
3:12-cv-00286-MMD-VPC
v.
ROBERT LEGRAND, Warden; MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted October 24, 2019**
San Francisco, California
Before: MELLOY,*** BYBEE, and N.R. SMITH, Circuit Judges.
*
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 Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
James Wright Jr. appeals the district court’s denial of his 28 U.S.C. § 2254habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We
affirm.
We review a district court’s denial of a habeas petition de novo. Hein v.
Sullivan, 601 F.3d 897, 905 (9th Cir. 2010). Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), habeas relief is available only if the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”;
or if the decision “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).
Wright asserts two instances of prosecutorial misconduct at trial—one
during cross examination of his co-defendant and another during the rebuttal
testimony of Detective Jenkins. A prosecutorial misconduct claim is successful on
federal habeas review only if the conduct “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
2
The Nevada Supreme Court denied the first claim of prosecutorial
misconduct, because the state did not violate the district court’s order prohibiting
the use of the co-defendant’s statement in its case in chief. Analyzing the second
claim of prosecutorial misconduct for plain error (because Wright did not object to
Detective Jenkins’s testimony at the time it was given), the court denied the second
claim, because the state did not solicit Detective Jenkins’s testimony. For neither
claim does Wright cite, nor do we find, any United States Supreme Court
precedent that suggests the Nevada Supreme Court’s decision was in error or that
the alleged instances of prosecutorial misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Id.Accordingly, neither of the rulings by the Nevada Supreme Court were
“contrary to, or an unreasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d)(1). Further, none of the complained of conduct rises to the level
of a denial of due process. Therefore, the district court properly dismissed Wright’s
habeas petition.
AFFIRMED.
3