Jeffrey Lungberg v. Larry Scribner

NOT FOR PUBLICATION FILED
SEPTEMBER 17
UNITED STATES COURT OF APPEALS
2014
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JEFFREY CARL LUNGBERG,
No. 11-56107
Petitioner-Appellant,
D.C. No. 07-01521-GAF-AGR
vs.
L.E. SCRIBNER, Warden,
MEMORANDUM*
Respondent-Appellee.
On Appeal from the United States District Court
For the Central District of California
Gary A. Feess, District Court Judge, Presiding
Argued and Submitted August 26, 2014
Pasadena, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and GLEASON,
District Judge.**
Jeffrey Lungberg was convicted by a jury in the State of California of
various criminal counts arising from his molesting his stepdaughter, Jane Doe.
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The Honorable Sharon L. Gleason, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
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Lungberg appealed his conviction to the California Court of Appeal, asserting
various claims, including prosecutorial misconduct at trial and ineffective
assistance of trial counsel (IAC). The Court of Appeal affirmed. The California
Supreme Court summarily denied review.
Lungberg then filed a habeas petition in federal court. The District Court for
the Central District of California denied relief. We granted a certificate of
appealability on: (1) whether Lungberg was entitled to relief as a result of the
alleged prosecutorial misconduct; or (2) whether trial counsel was ineffective
because of his failure to object to the alleged prosecutorial misconduct. We affirm.
We review de novo the district court’s denial of a § 2254 petition. Samayoa
v. Ayers, 649 F.3d 919, 928 (9th Cir. 2011). “On habeas review, constitutional
errors of the ‘trial type,’ including prosecutorial misconduct, warrant relief only if
they ‘had substantial and injurious effect or influence in determining the jury’s
verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)). As for IAC, where a state court has
evaluated the IAC claim pursuant to Strickland v. Washington, 466 U.S. 668, 687
(1984), “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Harrington v. Richter, 131 S.Ct. 770, 785
(2011).
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In this appeal, Lungberg asserts three instances of misconduct by the
prosecutor during closing arguments:
First, Lungberg asserts that the prosecutor misstated the contents of a note
from Lungberg’s wife to Lungberg. The California Court of Appeal agreed that
the prosecutor had misstated the note, but denied Lungberg relief because “[t]here
was substantial evidence against [Lungberg], and it is not reasonably probable that,
had the prosecutor not misstated the evidence, the result of the proceeding would
have been more favorable to the defendant.” We find that even if the misstatement
constituted prosecutorial misconduct, it did not have “a substantial and injurious
effect or influence in determining the jury’s verdict.” Wood, 693 F.3d at 1113;
Brecht, 507 U.S. at 637-38. And with respect to Lungberg’s IAC claim derived
from misstatement of the note, we find the California Court of Appeal’s
application of Strickland was not unreasonable. Harrington, 131 S.Ct. at 785.
Second, Lungberg asserts that the prosecutor improperly vouched for Jane
Doe’s credibility by suggesting that her religious faith made her more credible.
Specifically, the prosecutor stated Jane Doe “felt like God was important in her
life” and that her beliefs “[c]ompelled her” to disclose the molestation at the time
when she disclosed the molestation, after years of keeping silent. The prosecutor
then argued: “Now I am not saying that people that worship one faith or another
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are going to be anymore [sic] truthful than anyone else. But I am telling you this
little girl believed [faith] important. Keep that in mind when counsel suggests --
because the only thing he did at this point is suggest she is a liar.” The California
Court of Appeal concluded that in the context of the entire trial and closing
argument, the prosecutor’s statements did not amount to improper vouching
because the prosecutor was responding to defense counsel’s assertion that Jane
Doe had lied about the molestation by explaining that religion had motivated the
timing of her disclosure. We agree. “Vouching consists of placing the prestige of
the government behind a witness through personal assurances of the witness’s
veracity . . . .” United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir. 1999)
(quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).
Although a prosecutor ought not to use a phrase such as, “I am telling you,” here,
that statement immediately followed a discussion of the evidence that
demonstrated that religion was important to Jane Doe, which the California court
found relevant to the timing of her disclosure. Thus, we find that the California
Court of Appeal’s conclusion that the prosecutor did not improperly vouch for Jane
Doe was not “contrary to” and did not “involve[] an unreasonable application of[]
clearly established Federal law, as determined by the Supreme Court of the United
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States.” 28 U.S.C. § 2254(d)(1). Because this was not prosecutorial misconduct,
trial counsel’s failure to object cannot constitute IAC.
Third, Lungberg asserts that the prosecutor improperly argued that the jury
should consider the brevity of Lungberg’s testimony at trial. The California Court
of Appeal found nothing improper in the prosecutor’s arguments. We have
previously held that “it is neither unusual nor improper for a prosecutor to voice
doubt about the veracity of a defendant who has taken the stand.” United States v.
Moreland, 622 F.3d 1147, 1161 (9th Cir. 2010) (quoting United States v. Birges,
723 F.2d 666, 672 (9th Cir. 1984)). The California Court of Appeal’s conclusion
on this topic was not “contrary to” and did not “involve[] an unreasonable
application of[] clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Because this was not
prosecutorial misconduct, trial counsel’s failure to object cannot constitute IAC.
AFFIRMED.
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