                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                          JUL 23 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

SEAN PATRICK WARD,                               No. 10-17481

              Petitioner - Appellant,            D.C. No. 3:07-cv-00606-MHM

  v.
                                                 MEMORANDUM *
TERRY GODDARD; CHARLES RYAN;
CHARLES RYAN,

              Respondents - Appellees.



                      Appeal from the United States District Court
                               for the District of Arizona
                      Mary H. MURGUIA, District Judge, Presiding

                         Argued and Submitted March 27, 2012
                                   Tempe, Arizona

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Petitioner Sean Patrick Ward appeals the district court’s denial of his 28

U.S.C. § 2254 petition for habeas corpus. He raises one certified issue and several

uncertified issues.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Ward argues first that the prosecutor made three remarks during closing

argument that constituted prosecutorial misconduct and resulted in a denial of due

process. We may not grant relief unless the state court’s decision “was contrary to,

or involved an unreasonable application of, clearly established Federal law.” 28

U.S.C. § 2254(d)(1). The state court’s decision was neither. The misconduct must

have “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)) (internal quotation marks

omitted). The first remark was merely a criticism of the defense strategy and an

admonition to consider all of the evidence, which is not improper. See United

States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense

theories and tactics is a proper subject of closing argument.”). The third remark

may have constituted improper vouching of the prosecutor for the strength of the

government’s case, see United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir.

1999), but any harmful effect was lessened by: the phrasing of the remark as a

submission for the jury’s consideration, see United States v. Weatherspoon, 410

F.3d 1142, 1147 n.3 (9th Cir. 2005); the discussion of the trial evidence in

connection with the remark, see United States v. Young, 470 U.S. 1, 19 (1985); and

the defense attorney’s own comments, see United States v. Robinson, 485 U.S. 25,


                                          2
32–33 (1988). The second remark may have been improper vouching and an

improper denigration of the defense. See Sanchez, 176 F.3d at 1224. But this stray

remark did not necessarily infect the trial with unfairness. See Duckett v. Godinez,

67 F.3d 734, 743 (9th Cir. 1995). At the very least, there is much room for

disagreement among fairminded jurists over whether it did, which prevents us from

granting habeas corpus relief. See Renico v. Lett, 130 S. Ct. 1855, 1864 (2010).

      We find Ward’s arguments with regard to the uncertified issues to be

without merit, and we decline to certify them.

      AFFIRMED.




                                          3
