Bruce Franzen v. e.k. McDaniel , 405 F. App'x 227 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUCE L. FRANZEN, No. 09-17077
Petitioner - Appellant, D.C. No. 3:00-cv-00637-ECR-
RAM
v.
E.K. MCDANIEL, Warden; FRANKIE S. MEMORANDUM *
DEL PAPA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted December 7, 2010
San Francisco, California
Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.
Bruce Franzen appeals from the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition. We review de novo the district court’s decision to
deny a habeas petition and review its factual findings for clear error. McMurtrey v.
Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and Effective
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Death Penalty Act of 1996 (“AEDPA”), federal habeas relief may only be granted
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 “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)(2). The standard of review is “highly deferential . . . [and] demands that
state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).
Because the Nevada Supreme Court relied on an improper harmless error
standard, we “revert to the independent harmless error analysis that we would
apply had there been no state court holding.” See Inthavong v. Lamarque, 420
F.3d 1055, 1059 (9th Cir. 2005). We acknowledge that several of the prosecutor’s
comments during closing arguments may have constituted prosecutorial
misconduct. However, in light of the evidence of Franzen’s guilt, we conclude that
the prosecutor’s improper remarks, whether viewed individually or cumulatively,
did not have a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted).
2
We decline to expand the certificate of appealability with respect to
Franzen’s claims that were not certified by the district court.
AFFIRMED.
3