                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             JAN 4 2002
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    MARK FRANCIS CARRIER,

                  Petitioner-Appellant,

    v.                                                    No. 01-1011
                                                      (D.C. No. 96-D-1419)
    RICHARD MARR; KEN SALAZAR,                              (D. Colo.)
    ATTORNEY GENERAL OF THE
    STATE OF COLORADO,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and          BRORBY , Senior
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Mark Francis Carrier appeals from the district court’s order

denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We previously

granted Mr. Carrier’s request for a certificate of appealability,   see id. § 2253(c).

We now affirm the district court’s judgment denying habeas relief.

       Mr. Carrier was convicted after a jury trial in Colorado state court of two

counts of attempted second degree murder and two counts of “crime of violence.”

The Colorado Court of Appeals summarized the facts relating to his convictions

as follows:

             Defendant’s wife moved with the party’s children to her
       parents’ home as a result of marital discord. Thereafter, defendant
       and his wife met for dinner during which she stated that she would
       resume living with defendant. However, when defendant arrived the
       next morning at her parent’s home, his wife stated that she would not
       reconcile. At that point, defendant pulled out a knife.

              Conflicting testimony described the events that followed.
       However, it is undisputed that the wife was stabbed four times,
       receiving serious wounds in the chest, the back, and the arm. Her
       father was stabbed twice, once in the abdomen and once in the back.
       Both victims required extensive surgical intervention.

People v. Carrier , 791 P.2d 1204, 1205 (Colo. Ct. App. 1990). Mr. Carrier does

not dispute these basic factual findings, which are amply supported by the record.

       On appeal, Mr. Carrier contends that the prosecutor denied him due process

by repeatedly asserting in closing argument that the defense had tried to confuse

the jury (1) by putting lesser included offenses before it and (2) by relying on the

law of lesser included offenses rather than the facts of the case. The federal

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district court held that the challenged prosecutorial comments did not rise to the

level of a denial of due process.

      Although Mr. Carrier exhausted this claim in state court,     see Carrier v.

Marr , No. 99-1137, 1999 WL 1244474, at **2 (10th Cir. Dec. 20, 1999), the

Colorado Court of Appeals did not discuss clearly established constitutional law

in resolving the claim. We therefore review the district court’s order denying

Mr. Carrier’s habeas claim   de novo , and its factual findings, if any, for clear

error. Mitchell v. Gibson , 262 F.3d 1036, 1045 (10th Cir. 2001).

      The information filed against Mr. Carrier charged him with two counts of

attempted first degree murder. At trial, Mr. Carrier did not deny stabbing the

victims. His theory of defense was that he was guilty at most of a lesser included

offense. The jury received instructions on a number of lesser included offenses,

including attempted second degree murder, attempted manslaughter, first degree

assault and second degree assault. Mr. Carrier’s counsel spent considerable time

during closing argument explaining these instructions to the jury.

      In its rebuttal closing, the prosecution argued as follows:

      [I]f you don’t have the facts, you argue the law. And that’s what’s
      been done here. And if you have the facts, you don’t have to argue
      the law.

            We’ve charged this man with two counts of . . . attempted first
      degree murder and two counts of crime of violence. That’s what we
      charged him with. All the other book of stuff you get is lesser
      included offenses that the defense has the right to ask you to

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       consider. That’s not what we considered. But that book, that’s the
       law. That book is their defense. Confusion is their defense in this
       case. We didn’t put that book of assault first, second, reckless, some
       kind of reckless –

Trial Tr., Vol. II at 340. At this point, the defense objected, arguing that it is the

court’s duty to give the instructions.   Id. In response, both the prosecutor and the

court stated their agreement to this principle.

       The prosecutor then continued his argument that the prosecution was not

responsible for the lesser included offense instructions, culminating in this

comment:

              So if you don’t have the facts, you argue the law.

              You heard [defense counsel] get up there and tell you I don’t
       know what it’s going to mean. It’s going to take you years to get
       through this book of instructions. He doesn’t want you to look at the
       facts. He wants to keep you in that book of instructions.

Id. at 341. Defense counsel again objected. The trial court held a bench

conference but did not make any ruling before the jury and took no immediate

corrective action. The prosecutor continued, referring to the “you never know

defense”:

       That’s an expression where, uh, you got nothing to lose so let’s
       throw up all this stuff to them. You heard that argument. Let’s
       throw all this stuff out to them and heck, you never know. It only
       takes one juror. You never know defense.

Id. at 342. Defense counsel again objected, but the trial court responded that the

prosecutor had the right to comment on the defense arguments. The prosecution

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later returned to the theme of lesser included offenses, arguing that any time one

commits a murder, he also commits lesser included offenses. He admonished the

jury not to let the lesser included offenses confuse them.    Id. at 345.

       After closing arguments were complete, defense counsel moved for

a mistrial based on the prosecution’s comments. He also requested that the jury

be instructed to disregard the comments. The trial court denied both the mistrial

and the curative instruction, stating that it had already instructed the jury that it

was the court’s duty to give the instructions, not the prosecution’s.

       Habeas relief will be granted for improper prosecutorial remarks only

where the comments “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.”     Donnelly v. DeChristoforo , 416 U.S. 637,

643 (1974). We must consider “the totality of the circumstances, evaluating the

prosecutor’s conduct in the context of the whole trial.”     Cummings v. Evans ,

161 F.3d 610, 618 (10th Cir. 1998) (quotation omitted).

       [W]e look first at the strength of the evidence against the defendant
       and decide whether the prosecutor’s statements plausibly could have
       tipped the scales in favor of the prosecution. We also ascertain
       whether curative instructions by the trial judge, if given, might have
       mitigated the effect on the jury of the improper statements. When
       a prosecutor responds to an attack made by defense counsel, we
       evaluate that response in light of the defense argument. Ultimately,
       we must consider the probable effect the prosecutor’s [statements]
       would have on the jury’s ability to judge the evidence fairly.

Id. (quotation omitted).


                                            -5-
      Some of these factors weigh in favor of Mr. Carrier. The state court

arguably could have given a more explicit curative instruction, and defense

counsel’s argument did not invite the attack on the court’s instructions. The

remaining and more essential factors, however, weigh against Mr. Carrier.

      The jury did not convict Mr. Carrier of the offense charged, but of the

lesser included offense of attempted second degree murder. This fact suggests the

jury followed the trial court’s admonitions to apply the law rather than the

prosecution’s suggestion to avoid reliance on the instructions.

      Moreover, a careful review of the record shows that the jury more likely

rejected the lesser included offenses of attempted manslaughter, first degree

assault or second degree assault for lack of evidence rather than as a result of the

prosecution’s admonitions. There was ample evidence from which the jury could

have found that Mr. Carrier acted knowingly and without “heat of passion” in

stabbing the victims. Much less evidence supported Mr. Carrier’s theory that his

wife’s actions in refusing to reconcile with him, during the course of what was

described as a quiet or normal conversation, would have excited an “irresistible

passion” in a reasonable person, leading him to stab her with a near-fatal wound.

See State R., Vol. I, Instruction 12 (defining elements of attempted manslaughter).

The jury likely also rejected as implausible the defense theory that his father-in-

law contributed to his own injuries by impaling himself on the knife, and by


                                         -6-
putting Mr. Carrier in such fear of his life that he had no choice but to strike out

blindly and stab his victims multiple times. The lesser included offenses for first

or second degree assault were further contraindicated by the evidence that both

victims nearly died from their wounds.

      In sum, the evidence in this case tips strongly against Mr. Carrier. He fails

to show that the probable effect of the prosecutor’s statements was to prevent the

jury from judging the evidence fairly and reaching a verdict consonant with the

instructions provided.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.


                                                      Entered for the Court



                                                      Stephanie K. Seymour
                                                      Circuit Judge




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