FILED
NOT FOR PUBLICATION FEB 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIE HARRIS, No. 10-55628
Petitioner - Appellant, D.C. No. 2:05-cv-08676-SVW-JC
v.
MEMORANDUM *
SCOTT M. KERNAN,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 4, 2013 **
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Petitioner-Appellant Willie Harris appeals the district court’s denial of his
28 U.S.C. § 2254 Petition for Writ of Habeas Corpus challenging his conviction of
first degree murder, possession of a firearm by a felon, and evading an officer.
*
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).
Harris contends that his trial counsel provided ineffective assistance by (1) failing
to object to prosecutorial argument that commented on Harris’ failure to testify in
violation of Griffin v. California, 380 U.S. 609, 615 (1965), and (2) misstating the
facts during closing argument. He argues that the California Court of Appeal’s
decision to deny habeas relief on the ineffective assistance of counsel claim was
based on an unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984). We have jurisdiction under 28 U.S.C. § 2253 and we affirm.
1. The California Court of Appeal reasonably concluded that the
prosecutor’s comments addressed the failure of defense counsel to introduce
material evidence or call witnesses, and did not call attention to Harris’ failure to
testify. See Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (“[A] prosecutor’s
indirect comment violates Griffin only ‘if it is manifestly intended to call attention
to the defendant’s failure to testify, and is of such a character that the jury would
naturally and necessarily take it to be a comment on the failure to testify.’”
(quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987))); United States v.
Mares, 940 F.2d 455, 461 (9th Cir. 1991) (“The prosecutor may comment on the
defendant’s failure to present exculpatory evidence, provided that the comments do
not call attention to the defendant’s own failure to testify.”); Rhoades v. Henry, 598
F.3d 495, 511 (9th Cir. 2010) (finding that “[a] natural reading of the prosecutor’s
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comment is not that the defendant didn’t testify, but that there was no meaningful
challenge to the government’s evidence”). Accordingly, the California Court of
Appeal concluded that Harris’ defense counsel was not ineffective for failing to
make a Griffin objection. See Juan H. v. Allen, 408 F.3d 1262, 1273–74 (9th Cir.
2005) (finding that “performance of counsel did not fall below an ‘objective
standard of reasonableness’ on account of not raising [a] meritless objection”
(citation omitted)). Its decision was neither objectively unreasonable nor an
unreasonable determination of the facts in light of the evidence presented. See 28
U.S.C. § 2254(d)(1), (d)(2).
2. In addition, the California Court of Appeal did not apply Strickland in
an objectively unreasonable manner or rest its decision on an unreasonable
determination of the facts in rejecting Harris’ claim that defense counsel misstated
certain facts in closing argument. See 28 U.S.C. § 2254(d)(1), (d)(2). Defense
counsel’s remarks may reasonably be construed as argument—not objective
summation of the evidence—aimed at casting doubt on the credibility of the
prosecution’s witness and clarifying the defense’s theory of the case. Thus, the
California Court of Appeal reasonably concluded that defense counsel’s closing
remarks did not amount to ineffective assistance. See Harrington v. Richter, 131
S. Ct. 770, 787 (2011) (“A court considering a claim of ineffective assistance must
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apply a ‘strong presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.” (quoting Strickland, 466 U.S. at
689)); Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (noting that there is a “strong
presumption that [counsel acted] for tactical reasons rather than through sheer
neglect” (citing Strickland, 466 U.S. at 690)).
AFFIRMED.
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