NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE LOUIS THOMPSON, No. 16-15203
Petitioner-Appellant, D.C. No.
4:12-cv-02850-CW (PR)
v.
G. J. JANDA, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted May 14, 2018
San Francisco, California
Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District
Judge.
Petitioner-Appellant Willie Louis Thompson appeals from the district court
order denying him habeas relief under 28 U.S.C. § 2254. We have jurisdiction
pursuant to 28 U.S.C. § 2253(a). We review de novo. Greene v. Lambert, 288 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
1081, 1089 (9th Cir. 2002).
Under AEDPA, we may only grant a habeas petition if the underlying state
court’s decision is (1) “contrary to” or an “unreasonable application of[ ] clearly
established Federal Law, as determined by the Supreme Court of the United
States,” or (2) 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)(1)–(2); see
also Tak Sun Tan v. Runnels, 413 F.3d 1101, 1111–12 (9th Cir. 2005) (explaining
standard). This is a “‘highly deferential standard for evaluating state-court rulings,’
which demands that state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)).
1. Calls for Justice. The California Court of Appeal did not unreasonably
apply federal law in determining that the prosecutor’s appeals to the conscience of
the community did not constitute misconduct. “An appeal to the jury to be the
conscience of the community is not impermissible unless it is ‘specifically
designed to inflame the jury.’” United States v. Koon, 34 F.3d 1416, 1444 (9th Cir.
1994) (quoting United States v. Williams, 989 F.2d 1061, 1072 (9th Cir. 1993);
United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)). No prejudicial error
will be found where the comment is isolated and the court instructs the jury that its
function is to determine guilt or innocence based on the evidence of the case, and
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not counsel’s statements. See Koon, 34 F.3d at 1445. The trial court instructed the
jury on the prosecutor’s comments both at the time the comments were made and
also in its general jury instructions. Viewed in the context of Petitioner-Appellant’s
trial and appellate record on the whole, we do not conclude the prosecutor’s
statements “affected the jury’s ability to judge the evidence fairly.” Williams, 989
F.2d at 1072. We affirm the district court’s ruling on this ground.
2. Felon Status. Nor did the California Court of Appeal unreasonably
apply federal law when it determined that the prosecutor’s reference to the
defendants as felons resulted in no denial of Due Process. While it was
inappropriate for the prosecutor to contravene an in limine order of the trial court
by referring to the defendants as felons in his closing statements when discussing
the murder charges, they did not “so infect[ ] the trial with unfairness as to make
the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (quotation marks and citation omitted). The jury was already
aware that defendants were felons (the trial court told the jury that defendants had
stipulated as such), and the trial court also instructed the jury to consider the
murder and felon-in-possession charges separately. Therefore, as the California
Court of Appeal noted, “the prosecutor’s closing remarks, when read in context,
did not so exploit the admission into evidence of Defendants’ felon status as to
require reversal.” We affirm the district court’s ruling on this ground.
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3. Procedural Default. Because Petitioner-Appellant’s trial counsel did
not object at trial to the prosecutor’s statements comparing Defendants to “pack
animals,” that claim is procedurally defaulted. Jackson v. Giurbino, 364 F.3d 1002,
1006–07 (9th Cir. 2004). The California Court of Appeal expressly invoked
counsel’s failure to object as a state procedural bar. Thus, we are also unable to
review this claim because the state court’s “procedural bar rule was an independent
and alternative basis for denial of the petition.” Loveland v. Hatcher, 231 F.3d 640,
643 (9th Cir. 2000); see also Coleman v. Thompson, 501 U.S. 722, 729 (1991).
4. Strickland. Given the “doubly deferential” standard for ineffective
assistance claims in the habeas corpus context, Yarborough v. Gentry, 540 U.S. 1,
6 (2003), the state court did not unreasonably apply Strickland v. Washington, 466
U.S. 668 (1984). The prosecutor’s language concerning “pack animals,” while
colorful, did not prejudice the defense. The remarks were even less extreme than
those of the prosecutors in Darden, where the Supreme Court found no
constitutional violation. Darden, 477 U.S. at 180 nn.10–12. We decline to grant
habeas relief on this ground.
AFFIRMED.
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