FILED
NOT FOR PUBLICATION
DEC 18 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DANIEL BURGESS, No. 15-15124
Petitioner - Appellant, D.C. No. 2:03-cv-01196-GEB-
GGH
v.
D. L. RUNNELS, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted November 17, 2015
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Christopher Burgess appeals the denial of his petition for habeas relief under
28 U.S.C. § 2254.1 Burgess’s petition challenges his first-degree murder
conviction on the grounds that it was based on insufficient evidence, that he was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
We have jurisdiction under 28 U.S.C. § 2253(c)(1) and 28 U.S.C. § 1291.
prejudiced by prosecutorial misconduct during closing argument, and that he
received ineffective assistance of trial counsel. The district court denied Burgess’s
petition, granting a certificate of appealability (“COA”) on his prosecutorial
misconduct claim only. See 28 U.S.C. § 2253(c)(1)(A). We affirm the district
court’s denial of habeas relief on Burgess’s prosecutorial misconduct claim and
decline to expand the certificate of appealability to encompass his other two
claims.
1. We review de novo the district court’s denial of Burgess’s section 2254
petition. Hayes v. Ayers, 632 F.3d 500, 507 (9th Cir. 2011) (citing Tilcock v.
Budge, 538 F.3d 1138, 1143 (9th Cir. 2008)). In order to prevail, Burgess must
demonstrate that the Court of Appeal’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal Law.” 28 U.S.C. §
2254(d)(1). He must also demonstrate that the prosecutor’s alleged misconduct
“so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). We look to the last
reasoned state court decision to evaluate Burgess’s claims; here, the decision of the
California Court of Appeal. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see
generally Harrington v. Richter, 562 U.S. 586 (2011).
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2. During closing rebuttal argument, the prosecutor displayed a photo of the
victim at Christmas, noted that the victim would never experience another
Christmas, and delivered a speech analogizing the opening of Christmas presents to
the medical examiner’s autopsy of the victim’s body. People v. Burgess, No.
C032143, slip op. at 10 n.3 (Cal. Ct. App. Mar. 1, 2001). After the prosecutor
delivered her rebuttal, court adjourned for the day. Id. at 11. The following
morning, defense counsel requested that the court admonish the jury not to
consider the prosecutor’s improper argument. The trial court denied defense
counsel’s request, but it modified its final instruction to admonish the jury to
disregard arguments designed to arouse sympathy, passion, or prejudice. Id.
3. Even assuming the prosecutor’s “Christmas speech” was an improper appeal
to the jury’s passions and biases, improper argument, by itself, does not violate a
defendant’s constitutional rights. Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir.
1996) (internal citations omitted). As noted, prosecutorial misconduct rises to a
constitutional violation only if it “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Parker, 132 S. Ct. at 2153; see
also Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Supreme Court has
instructed federal courts to evaluate the alleged misconduct in the context of the
entire proceedings and to consider whether the prosecutor manipulated or misstated
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evidence; whether her comments implicated other specific rights of the accused;
whether the objectionable content was invited or provoked by defense counsel’s
argument; whether the trial court admonished the jurors; and the weight of the
evidence against the defendant. See Darden, 477 U.S. at 181.
4. Applying those factors, Burgess has not demonstrated that the prosecutor’s
Christmas Speech rendered his trial “fundamentally unfair” such that his
conviction violates due process. The prosecutor’s comments did not misstate the
evidence or implicate Burgess’s other specific rights. Further, the court modified
its final jury instruction to address defense counsel’s objection. Finally, the trial
evidence of Burgess’s conduct and the victim’s injuries was sufficient to support
conviction beyond a reasonable doubt. Burgess, slip op. at 3–7. Viewing the trial
evidence and drawing all inferences in the light most favorable to the prosecution,
a rational factfinder could have found beyond a reasonable doubt the essential
elements of first-degree murder under a torture-murder theory. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); People v. Streeter, 54 Cal.4th 205, 237–38
(2012) (explaining the prosecutor’s burden of proof for first-degree murder by
torture under California law). In light of the record evidence, Burgess has not
demonstrated that the Christmas Speech so infected the trial that it rendered his
first-degree murder conviction a denial of due process. Parker, 132 S. Ct. at 2153.
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5. When a petitioner submits a brief addressing uncertified issues, we may
construe the inclusion of those issues as a request to expand the scope of the COA.
Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008) (internal citation
omitted). In order to expand a COA, the “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Burgess has not
demonstrated that reasonable jurists would find the district court’s assessment of
his sufficiency of the evidence and ineffective assistance of trial counsel claims
debatable or wrong. Accordingly, we decline to expand the COA.
6. The judgment of the district court denying Burgess’s habeas petition is
AFFIRMED.
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