Joseph Fischer v. Edmund Brown, Jr.

FILED
UNITED STATES COURT OF APPEALS JUN 23 2014
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JOSEPH ALAN FISCHER, No. 12-56105
Petitioner - Appellant, D.C. No. 8:09-cv-00126-AG-JEM
Central District of California,
v. Santa Ana
EDMUND G. BROWN, Jr.; FRANK X.
CHAVEZ, ORDER
Respondents - Appellees.
Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.*
Petitioner’s Petition for Panel Rehearing is GRANTED. The memorandum
disposition filed on June 9, 2014 is AMENDED as follows.
The first paragraph states:
Petitioner appeals the district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition challenging his conviction and sentence
as cruel and unusual punishment in violation of the Eighth
Amendment. We have jurisdiction pursuant to 28 U.S.C. § 2253, and
we affirm.
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
The first paragraph is deleted in its entirety and replaced with the following
language:
Petitioner appeals the district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition challenging his conviction and sentence
because of prosecutor misconduct resulting in a denial of his rights
under the Due Process Clause of the Fourteenth Amendment. We
have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
IT IS SO ORDERED.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH ALAN FISCHER, No. 12-56105
Petitioner - Appellant, D.C. No. 8:09-cv-00126-AG-JEM
v.
AMENDED MEMORANDUM*
EDMUND G. BROWN, Jr.; FRANK X.
CHAVEZ,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted June 4, 2014**
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***
*
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 Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Petitioner appeals the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition challenging his conviction and sentence because of prosecutor
misconduct resulting in a denial of his rights under the Due Process Clause of the
Fourteenth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 2253, and
we affirm.
Our review is governed by the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). 28 U.S.C. § 2254. AEDPA restricts federal courts from
granting a writ of habeas corpus to a petitioner in custody after a state court
judgment on the merits unless the petitioner can show that the state court’s last
reasoned adjudication of the petitioner’s federal claim resulted in a decision that
(1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or (2) “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). AEDPA
review is “highly deferential.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(citation omitted). When considering a habeas petition, we “look through” the
silent state court decision to the last reasoned decision of a lower state court,
applying AEDPA to that decision. See Ylst v. Nunnemaker, 501 U.S. 797, 806
(1991).
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Fischer contends that his conviction and 12-year sentence for robbery,
assault with a deadly weapon, and assault with a firearm were unfair because the
prosecutor committed misconduct by: (1) making improper arguments regarding
evidence; (2) commenting on Fischer’s silence under Griffin v. California, 380
U.S. 609 (1965); and (3) misstating the reasonable doubt standard and improperly
shifting the burden of proof.
The California Court of Appeal, Fourth Appellate District affirmed Fischer’s
conviction and sentence on December 20, 2007. That court found that although the
prosecutor committed inadvertent misconduct in discussing potential DNA
evidence and misstating the reasonable doubt standard, any misconduct was non-
prejudicial because the trial court closely managed the prosecutor and issued
proper instructions to the jury. The Court of Appeal also concluded that no Griffin
violation occurred because California law lets prosecutors point out that material
evidence is not presented by the defense where one would expect it to be available.
See People v. Bradford, 939 P.2d 259 (Cal. 1997). Finally, the Court of Appeal
found no prosecutorial misconduct when the prosecutor referred to the defense’s
arguments as “scare tactics,” noting the leeway both sides are given in closing
arguments and the particular context of the discrete comments. The California
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Supreme Court denied Fischer’s petition raising the same claims without comment
on March 12, 2008.
In examining the prosecutor’s alleged misconduct, the “relevant question is
whether the prosecutors’ comments 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) (internal quotation marks and citation omitted). This a demanding
standard. Even when prosecutorial misconduct occurs, habeas relief will only be
granted if a petitioner can establish that the error “‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).
We hold that the California Court of Appeal’s decision is not contrary to, or
an unreasonable application of, clearly established Supreme Court precedent. See
28 U.S.C. § 2254(d). First, Fischer’s contention that the prosecutor committed
misconduct under Berger v. United States, 295 U.S. 78 (1935), overruled on other
grounds by Stirone v. United States, 361 U.S. 212 (1960), is misplaced because the
Court of Appeal reasonably concluded that the prosecutor was not “vouching” for
Officer Paqua or disparaging the defense counsel. See Ceja v. Stewart, 97 F.3d
1246, 1253–54 (9th Cir. 1996) (Counsel “are given latitude in the presentation of
4
their closing arguments, and courts must allow the prosecution to strike hard blows
based on the evidence presented and all reasonable inferences therefrom.” (quoting
United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993))).
Second, the Court of Appeal reasonably concluded that the prosecutor did
not commit misconduct in alluding to evidence not presented by the defense, and
regardless, any potential misconduct was not prejudicial because “the trial court
intervened, sustained objections, told the jury to base their decision on the
evidence, and prevented further argument on this point.” Third, the Court of
Appeal’s interpretation of Griffin is not an unreasonable application of Supreme
Court precedent because “[a] prosecutor may properly comment upon the
defendant’s failure to present exculpatory evidence, so long as it is not phrased to
call attention to the defendant’s own failure to testify.” United States v. Soulard,
730 F.2d 1292, 1306 (9th Cir. 1984).
Finally, we reject Fischer’s argument that the prosecutor’s misstatement of
the reasonable doubt standard was prejudicial. The United States Supreme Court
has told us that courts may presume that juries abide by instructions. Weeks v.
Angelone, 528 U.S. 225, 234 (2000). Fischer’s claim fails because he presents no
evidence suggesting that the jury departed from the correct reasonable doubt
instructions it received orally and then in writing upon entering deliberations.
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AFFIRMED.
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