FILED
NOT FOR PUBLICATION OCT 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARKELLE NEAL TAYLOR, No. 08-17583
Petitioner-Appellant, D.C. No. 2:05-cv-0078-MCE-
GGH
v.
THOMAS CAREY, MEMORANDUM *
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Presiding
Argued and Submitted September 14, 2010
San Francisco, California
Before: WALLACE and THOMAS, Circuit Judges, and MILLS,** Senior District
Judge.
Petitioner Markelle Neal Taylor, a California state prisoner, appeals from the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
Taylor brings a claim of prosecutorial misconduct. We will not reach the
procedural default issue, because the prosecutorial misconduct claim fails on the
merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).
The alleged misconduct relates to testimony given by a Deputy District
Attorney during Taylor’s trial in state court. The Deputy District Attorney, Chris
Ore, handled the initial phase of the prosecution and interviewed witnesses.
Eventually, another prosecutor took over the case, and Ore was called as a witness.
Ore violated a court order while testifying by volunteering unsupported speculation
that one of the witnesses had been improperly influenced.
The Respondent has argued that when Ore testified, he was neither (1) an
agent of the prosecution, nor (2) engaged in a prosecutorial function. We reject
these arguments, and hold that Ore’s improper conduct is attributable to the
prosecution under Giglio v. United States, 405 U.S. 150, 154-55 (1972).
However, constitutional error alone is not sufficient to grant relief, because
Taylor must also demonstrate that he was prejudiced by the error. See Allen v.
Woodford, 395 F.3d 979, 998 (9th Cir. 2005).
In this instance, the state trial court worked with the prosecution and the
defense to limit the impact of Ore’s testimony. The court redacted the offensive
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portion of the transcript, and the prosecution and the defense agreed to a stipulation
that the trial court read to the jury.
We hold that the remedial action taken by the state trial court limited the
impact of Ore’s inappropriate comments and, as a result, Taylor was not
prejudiced. See Allen, 395 F.3d at 998. Considering the curative action taken by
the trial court, and the weight of the evidence, Taylor was not deprived of a fair
trial. See id.
AFFIRMED.
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