Agustin Nevarez v. Heidi M. Lackner ( 2015 )

FILED
NOT FOR PUBLICATION
MAR 20 2015
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUSTIN JESUS NEVAREZ, No. 12-16610
Petitioner - Appellant, D.C. No. 4:11-cv-00974-PJH
v.
MEMORANDUM*
HEIDI M. LACKNER, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 18, 2014**
San Francisco, California
Before: BERZON and RAWLINSON, Circuit Judges, and LYNN, District
Judge.***T
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 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 Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
Agustin Jesus Nevarez appeals the district court’s denial of his habeas
petition, claiming improper closing argument by the government in his criminal
trial. Under the AEDPA, this Court may reverse the district court’s decision and
grant Petitioner relief only if it finds that the California Court of Appeal’s decision
denying his appeal 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 it “resulted in a decision that 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) and (2). This Court reviews a district court’s
denial of a writ of habeas corpus de novo. Houston v. Schomig, 533 F.3d 1076,
1079 (9th Cir. 2008). Having done so, we affirm.
Petitioner was convicted of two counts of forcible rape of two minor girls.
He appealed, and his conviction was affirmed by the California Court of Appeal.
This Court issued a certificate of appealability from the district court’s decision
denying Petitioner’s application for a writ of habeas corpus under 28 U.S.C.
§2254(d) as to one issue: whether the government committed prosecutorial
misconduct during closing argument. During the closing argument, the
government stated that Petitioner began “hook[ing] up” with his wife when she
was only 14 years old, and added, “I don’t know, I don’t know what that tells you
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about his preferences in age of girls.” The government also implied that Petitioner
wanted to have sex with one of the victims because his marriage was in trouble and
he was probably not having sex with his wife. The government had presented
evidence from Petitioner’s wife that their marriage had deteriorated after the birth
of their first child, but there was no direct evidence that Petitioner was not having
sexual relations with his wife. After a jury verdict in favor of the government, the
trial court entered a judgment against Petitioner, who appealed.
The California Court of Appeal held that the government had committed no
misconduct, but merely made a “fair comment on the evidence.” That holding was
not contrary to, nor was it an unreasonable application of, clearly established
federal law; nor did the California Court of Appeal unreasonably determine the
facts in light of the evidence presented.
The standard for prosecutorial misconduct is set forth in Darden v.
Wainwright, 477 U.S. 168, 181 (1986). It requires a petitioner claiming a
prosecutor’s comments to be improper to show that they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Id.
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Applying that
standard, the California Court of Appeal’s conclusions that (1) the government had
drawn permissible inferences from the evidence and (2) even if the prosecutor’s
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comments were improper, “they did not infect the trial with unfairness such that
Nevarez’s due process rights were violated,” neither rested on a standard different
from Darden nor unreasonably applied the Darden standard.
For these reasons, we AFFIRM the district court’s dismissal of Petitioner’s
habeas petition.
AFFIRMED.
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