                             NOT FOR PUBLICATION                            FILED
                      UNITED STATES COURT OF APPEALS                        MAR 22 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



    NICOLA CHRISTOPHER BUCCI,                       No.   15-17413

                       Petitioner-Appellant,        D.C. No. 2:11-cv-03147 GEB KJN

    v.
                                                    MEMORANDUM*
    TIMOTHY E. BUSBY, Warden,

                       Respondent-Appellee.

                     Appeal from the United States District Court
                         for the Eastern District of California
                    Garland E. Burrell, Jr., District Judge, Presiding

                       Argued and Submitted December 13, 2016
                               San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.

         Nicola Bucci appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253

and affirm.



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
     The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
      Bucci was convicted after a jury trial of two counts of second degree murder

arising from a head-on collision that left two people dead and two others seriously

injured. He claims that he was denied due process by the admission of certain

propensity evidence and by prosecutorial misconduct during closing arguments.

Bucci also contends that trial counsel failed to investigate the facts of the accident

and was therefore unconstitutionally ineffective.

      1. The state appellate court’s conclusion—that the admission into evidence

of the 1994 fatal accident caused by Bucci did not violate Bucci’s due process

rights—was not an unreasonable application of clearly established Supreme Court

law. Indeed, there is no clearly established law holding that the introduction of

propensity evidence violates due process. In the absence of a clearly established

right, Bucci’s claim fails.

      2. The state court reasonably concluded that the prosecutor’s closing

remarks were not a violation of Bucci’s right to due process. The relevant inquiry

is “whether the prosecutors’ comments ‘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)). The state court reasonably concluded that the prosecutor’s argument to

the jury that Bucci “got away” with the 1994 fatalities, even if misconduct, did not

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prejudice Bucci because there was overwhelming evidence of Bucci’s guilt.

Therefore, the state court’s conclusion that there was no due process violation did

not stem from an unreasonable application of clearly established law. A similar

conclusion is compelled for the prosecutor’s statements regarding character

evidence. Those remarks did not so infect the trial with unfairness as to violate

due process. Accordingly, Bucci’s prosecutorial misconduct claims are

unpersuasive.

      3. The state post-conviction court’s denial of relief on Bucci’s ineffective

assistance of counsel claim after applying Strickland v. Washington, 466 U.S. 668

(1984), was not unreasonable. The court concluded that an accident reconstruction

expert’s testimony would have been inconsistent with, and likely would have

undermined, Bucci’s defense at trial and that the outcome of the trial likely would

not have changed. That conclusion is neither contrary to, nor an unreasonable

application of, clearly established federal law. We therefore reject Bucci’s

ineffective assistance of counsel claim.

      4. We decline to expand the certificate of appealability to address the other

issue raised by Bucci. 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.”).

      AFFIRMED.

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