FILED
NOT FOR PUBLICATION SEP 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOTON CHAN, No. 10-55285
Petitioner - Appellant, D.C. No. 2:07-cv-00729-DSF-OP
v.
MEMORANDUM*
JAMES A. YATES, Warden of Pleasant
Valley State Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted September 1, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Soton Chan appeals the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition challenging his California convictions for second degree murder
and attempted second degree murder. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chan argues that the prosecutor committed misconduct by commenting that
one witness was intoxicated while on the stand and another witness had a
trembling lip while testifying. He also claims that the trembling lip comments
were vouching and that defense counsel was ineffective for failing to object to the
comments during trial.
The state court ruled that Chan procedurally defaulted his prosecutorial
misconduct claims by failing to object at trial. Because this is an independent and
adequate state ground, federal habeas relief was properly denied. Loveland v.
Hatcher, 231 F.3d 640, 643-44 (9th Cir. 2000); Rich v. Calderon, 187 F.3d 1064,
1070 (9th Cir. 1999).
Likewise, because Chan has not established that counsel was ineffective, he
has not shown cause and prejudice to excuse his procedural default. The state
court reasonably applied Strickland v. Washington, 466 U.S. 668 (1984), by
holding that defense counsel made a reasonable tactical decision to directly refute
the prosecutor’s comments, instead of objecting. “[D]eference to counsel’s tactical
decisions in his closing presentation is particularly important because of the broad
range of legitimate defense strategy at that stage.” Yarborough v. Gentry, 540 U.S.
1, 6 (2003) (per curiam).
2
In any event, the state court reasonably applied Darden v. Wainwright, 477
U.S. 168 (1986), when it held, even assuming no procedural default, that the
prosecutor’s comments did not deny Chan his due process right to a fair trial.
Counsel are permitted to comment on the witnesses’ demeanor during testimony,
manifestations occurring in open court that the jury can see and evaluate for itself.
Allen v. Woodford, 395 F.3d 979, 997 (9th Cir. 2005). Nor did the prosecutor
claim to have any personal knowledge of the witness’ veracity or imply that
evidence not presented at trial established that the witness was telling the truth.
There was no vouching. United States v. Necoechea, 986 F.2d 1273, 1276 (9th
Cir. 1993).
We decline to grant a certificate of appealability for the uncertified claims
raised by Chan.
AFFIRMED.
3