FILED
NOT FOR PUBLICATION
JUL 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE RICHARD SENATOR, No. 15-55136
Petitioner-Appellant, D.C. No.
8:10-cv-01600-SVW-PLA
v.
STEVEN J. SENTMAN, Chief Probation MEMORANDUM*
Officer,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 4, 2017
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**
District Judge.
Appellant Bruce Senator appeals the denial of his Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (1996). After a jury trial, Senator was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
found guilty of two counts of making criminal threats to two administrative law
judges who had presided over Senator’s worker’s compensation claim. He was
charged with one count for each judge. In his Habeas Petition and on appeal,
Senator asserts that during closing argument the prosecutor committed misconduct
by impermissibly vouching for the administrative law judges’ credibility as
witnesses. Upon reviewing Senator’s Petition, the magistrate judge agreed that the
prosecutor’s closing argument consisted of impermissible vouching, but concluded
that the trial court cured the vouching through jury instructions, and that, in the
context of the entire trial, the vouching was harmless. Senator appeals that
decision. We have jurisdiction pursuant to 28 U.S.C. § 1294(1), and we affirm,
although we take a different route than the district court to reach this conclusion.
1. The prosecutor’s comments during closing argument, made in
response to Senator’s argument, did not constitute impermissible vouching. To
prevail on a claim of prosecutorial misconduct in a habeas action, a petitioner must
show that the prosecutor's 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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Prosecutorial misconduct warrants relief only if the alleged error “had
substantial and injurious effect or influence in determining the jury's verdict.”
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Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). Because Senator did not object to the
prosecutor’s comments, we review for plain error. United States v. Alcantara-
Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015).
The particular statements the district court found troublesome included that
Senator was a convicted felon who was not trustworthy and that the judges’
credibility was “[a]bsolutely untouchable.” The prosecutor responded to Senator’s
accusation that the judges were liars by stating: “As far as you, as jurors, are
concerned, what they say goes. If they said it happened, it happened. If Judge
Whitely comes in here or Judge Delaterre comes in here and tells you X happened,
it happened. And you know that, and there's no other way to view that evidence.”
The prosecutor’s comments at closing were in response to Senator’s theory
of the case and argument during closing that the judges were not credible because
they were fixing workers’ compensation cases and that the judges lied about
feeling threatened by Senator’s statements. No evidence of fixing cases was
presented at trial nor were either of the judges impeached during their testimony.
Senator and the district court relied on Alcantara-Castillo in support of the
conclusion that the prosecutor’s comments in closing constituted impermissible
vouching. 788 F.3d at 1196. But Senator’s case is distinguishable from
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Alcantara-Castillo, in that the witnesses in that case each had “significant
credibility problems” which made the credibility contest “even closer.” Id. There
were no such credibility problems here because there was no evidence to support
Senator’s argument that the judges were liars. The judges were not impeached
during their testimony, and no evidence was admitted that cast doubt on their
veracity. Thus, it was not improper for the prosecutor to rebut Senator’s general
statements regarding the judges’ credibility with a general defense of their
credibility based on their profession. Moreover, the Government must be given
reasonable latitude in closing argument, and in “a case that essentially reduces to
which of two conflicting stories is true, it may be reasonable to infer, and hence to
argue, that one of [the] two sides is lying.” United States v. Wilkes, 662 F.3d 524,
541 (9th Cir. 2011) (quoting United States v. Molina, 934 F.2d 1440, 1445 (9th
Cir. 1991)). Senator reduced the case to a credibility contest during closing
argument and the prosecutor did nothing more than respond to that theory.
In his comments, the prosecutor did not inject the prestige of the
government. For example, he did not insert any pronouns in the argument
suggesting that it was his opinion or the Government’s opinion that these were
credible witnesses. Cf. United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)
(finding that the prosecutor improperly vouched by making statements such as “I
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think he [] was very candid[,]” and “I think he was honest.”). 981 F.2d 1050, 1053
(9th Cir. 1992).
Here, the prosecutor pointed out only that the Government’s trial witnesses
were judges and that the jury could consider their job as evidence of their
credibility. The jury could also consider the admitted evidence that Senator was a
convicted felon in judging his credibility. Given these circumstances, the
prosecutor’s statements do not constitute impermissible vouching and we may end
the analysis there.
2. We construe Senator’s arguments that he received ineffective
assistance of counsel as a motion to expand the certificate of appealability. See 9th
Cir. R. 22-1(e). Because Senator has not made a “substantial showing of the denial
of a constitutional right,” we deny the motion. See Hiivala v. Wood, 195 F.3d
1098, 1104 (9th Cir. 1999) (quoting 28 U.S.C. § 2253(c)(2)).
AFFIRMED.
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