dissenting:
I regret that I cannot join the majority opinion, especially because I find little fault with Judge Boochever’s recitation of the facts or discussion of the applicable law. In fact, I found his statement of the reasons warranting a retrial so compelling that it reinforces my belief that this conviction should be allowed to stand.
It is a common interrogation tactic in criminal cases to offer the suspect an opportunity to “explain what really happened.” The interrogators may not actually believe that an explanation will mitigate the suspect’s responsibility and the *408suspect, of course, is entirely free to decline the invitation to “explain.” Here, investigators asked Dr. Samson Dubria (“Dubria”) to explain why a young woman he was continuously alone with for the prior 24 hours suddenly turned up dead from chloroform intoxication.
Dubria had a perfect right to say nothing. Instead, he chose to offer an explanation of his own. Hindsight suggests that if he had explained what the evidence seems to so clearly show — that Jennifer Klap-per’s death was the unintended result of Dubria’s attempt to have sex with someone who wanted no part of such activity with him — he might not have faced first degree murder charges and life imprisonment without possibility of parole.
But Dubria chose a different course. Rather than admit that this was a planned rape gone wrong, or even remain silent, he chose — in his initial contacts with police and emergency personnel, in his later interview with homicide detectives after the toxicology results were known, and in his trial testimony — to claim that Jennifer simply dropped dead in her sleep and that he had absolutely no idea how chloroform got in her system.
Faced with a choice between Dubria’s version and the State’s rape-murder theory, the jury found Dubria not believable and accepted the State’s proof. For our collateral review purposes, there is an adequate basis in the record for the jury’s conclusion. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Our role in habeas corpus review of a state conviction does not include considerations of proportionality. Nor, as the majority correctly notes, do we sit as a reviewer of facts. Our role is to determine whether the claims of error rise to the level of constitutional magnitude and, if they do, whether any error had a substantial prejudicial effect on Dubria’s fundamental right to a fair trial. See 28 U.S.C. § 2254.
The state trial court admitted, over defense objections, the entirety of a pre-trial interview of Dubria in which the investigators asked some very confrontational questions, laced with assertions about whether a jury would ever believe Dubria’s version of events. The trial court declined to redact the transcript of the defense-challenged portions, but did give two separate cautionary instructions to the jury that these statements should be ignored and their content not be considered as true. See Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1971); United States v. Merino-Balderra-ma, 146 F.3d 758, 764 (9th Cir.1998) (timely instruction cures prejudicial impact of evidence unless the evidence is highly prejudicial or the instruction clearly inadequate). There is no suggestion of any kind in the record that the jury did not understand and abide by the cautionary instructions. See, e.g., United States v. Nguyen, 88 F.3d 812, 817-18 (9th Cir.1996); United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.1980).
Nor did the investigators’ statements amount to one witness offering an opinion on the truthfulness of another witnesses’s testimony. Cf. United States v. Sanchez, 176 F.3d 1214, 1219 (9th Cir.1999). The investigators were basically saying to Dub-ria: “If you stick to your version of what happened that night, not only will no one believe you, but you run the risk that they will impute motives to you that are far worse than you may have had.” Especially in light of the two cautionary instructions given to the jury, it is very hard to characterize what the investigators told Dubria as a comment upon his truthfulness as a witness.
Closing argument in Dubria’s trial lasted over the course of some four days, consuming some 127 pages of transcript. The majority opinion finds fault with seven lines on one of those pages and not simply with the content of what was argued, but defense counsel’s failure to object to it. This was the prosecutor’s argument:
*409But to get up here and get on the stand and look at you people and tell you the story that he told you in front of the family, this piece of garbage, making up every little bit of it, he’s the biggest liar you’ve ever encountered. He’s worse than that. I’m not going to tell you. You can imagine some of the things I could tell you what he really is. I’m not going to tell you, because you know. You know in your hearts what else.
The opinion finds fault with that portion of the prosecutor’s argument where the words “this piece of garbage” were used. Read in full context, the phrase could have just as easily have referred to Dubria’s story as to Dubria himself. The failure of defense counsel to object, or the trial court to intercede, suggests that the reference was to the story and not Dubria himself.
The opinion further concludes that the last four sentences of the argument constituted a statement by the prosecutor that he had personal knowledge of the defendant’s character and guilt. I disagree. Having just called Dubria a “liar,” a fair reading of these sentences is that the prosecutor is sparing the jury from referring to Dubria as worse.
Because I conclude that this argument does not rise to the level of being prejudicial, I would not even reach the question whether Dubria was deprived of the effective assistance of counsel by a failure to object.
I would affirm the district court’s denial of Dubria’s habeas petition.