Gonzalez v. Giurbino , 361 F. App'x 822 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 07 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
DAVID P. GONZALEZ, No. 07-55280
Petitioner - Appellant, D.C. No. CV-06-02887-TJH
v.
MEMORANDUM *
G. J. GIURBINO, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
California state prisoner David P. Gonzalez appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition challenging his jury
conviction for second degree murder. We have jurisdiction pursuant to 28 U.S.C.
*
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).
EG/Research
§ 2253, and we affirm.
Gonzalez contends that the prosecutor committed misconduct in closing
argument by suggesting that defense counsel believed Gonzalez was guilty and
arguing facts not in evidence. The California Court of Appeal’s determination that
there was no misconduct was not contrary to or an unreasonable application of
federal law. See 28 U.S.C. § 2254(d). The prosecutor’s comments on the
defense’s inconsistent theories of mistaken identity and self-defense and on the
veracity of the key defense witness’s testimony did not constitute misconduct. See
Tak Sun Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (stating that under
standards applicable to prosecutorial misconduct claims in habeas cases, first
question is whether prosecutor’s remarks were improper).
Gonzalez also contends that trial counsel was ineffective in failing to object
to the prosecutor’s statements. Because the prosecutor’s statements did not
constitute misconduct, trial counsel’s failure to object did not constitute ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). See
Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (stating that trial counsel
cannot have been ineffective in failing to raise a meritless objection).
AFFIRMED.
EG/Research 2 07-55280