                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOE LOUIS ARMENTA,                              No.    16-55930

                Petitioner-Appellant,           D.C. No.
                                                5:15-cv-00415-DOC-RAO
 v.

SCOTT KERNAN, Secretary, California             MEMORANDUM*
Department of Corrections,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                       Argued and Submitted April 9, 2018
                              Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

      Joe Louis Armenta, a California state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. After a jury trial, Armenta was

convicted of four counts of attempted murder of a peace officer, see Cal. Pen. Code



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
§§ 187(a), 664(e)-(f); four counts of assault with a firearm on a peace officer, see

Cal. Pen. Code § 245(d)(1); one count of unlawful possession of a firearm, see Cal.

Pen. Code § 12021(a)(1); and one count of unlawful possession of ammunition, see

Cal. Pen. Code § 12316(b)(1). In his habeas petition, and now on appeal, Armenta

asserts that he was denied due process because of five alleged instances of

prosecutorial misconduct—one during opening statement, two while presenting

evidence, and two during closing argument. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

we may grant relief only when a state court’s adjudication of a claim “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      To prevail on a claim of prosecutorial misconduct, a petitioner must show

that the prosecutor’s 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)).

Prosecutorial misconduct warrants relief only if the alleged error “had substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht v.



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Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). Here, none of the prosecutor’s remarks, taken individually

or together, constituted prejudicial misconduct under the Supreme Court’s clearly

established law.

      1. During opening statement, the prosecutor accused the defense of

fabricating stories to rationalize Armenta’s behavior. The trial court admonished

the jury that the prosecutor’s statement did not constitute evidence and should be

disregarded. Rather than determine whether the prosecutor engaged in misconduct,

the California Court of Appeal1 held that the trial court’s admonition cured any

potential prejudice from the prosecutor’s remarks. This conclusion is not contrary

to, nor an unreasonable application of, any clearly established federal law. See,

e.g., Darden, 477 U.S. at 181–82 (finding that prosecutors’ improper comments

during closing argument did not deprive petitioner of a fair trial because the trial

court instructed jurors that arguments of counsel were not evidence); Donnelly,

416 U.S. at 644–45 (same, where jury was instructed to disregard prosecutor’s

improper statements during closing argument). Indeed, a jury is presumed to have

understood and followed the trial court’s instructions. Weeks v. Angelone, 528 U.S.



      1
             Because the California Supreme Court denied Armenta’s state court
habeas petition without substantive comment, we review the California Court of
Appeal’s unpublished opinion as the “last reasoned decision” in the state
proceedings. Maxwell v. Roe, 628 F.3d 486, 495 (9th Cir. 2010).

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225, 234 (2000). Any risk of undue prejudice was further mitigated when the trial

court sustained defense counsel’s objection and struck the prosecutor’s remarks

from the record. See Greer v. Miller, 483 U.S. 756, 766 & n.8 (1987).

      2. Armenta next contends that the prosecutor elicited false testimony about

the nature of his prior conviction. Special Agent Rudolph, who participated in

Armenta’s arrest, testified that he had received information from other officers that

Armenta was “on felony probation for a firearms offense.” Defense counsel

objected to Rudolph’s testimony, since Armenta was on probation for possession

of metal knuckles, not a firearm. The California Court of Appeal concluded that

there was no prosecutorial misconduct because the prosecutor did not elicit false

testimony. Rudolph honestly described his state of mind when he executed the

arrest warrant, including what he knew about Armenta’s criminal history.

Moreover, even if Rudolph’s testimony was false, the Court of Appeal reasonably

concluded that any prejudice was cured by the trial court’s admonition to the jury

that Armenta was on probation for possession of metal knuckles. See Greer, 483

U.S. at 766 n.8. This conclusion is not contrary to, nor an unreasonable application

of, any clearly established federal law. See Darden, 477 U.S. at 181–82; see also

Donnelly, 416 U.S. at 644–45; Weeks, 528 U.S. at 234.

      3. Armenta next argues that the prosecutor improperly elicited testimony

about his encounter with an East Side Riva (ESR) gang member in 1999. At a pre-



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trial hearing, the trial court issued an in limine ruling excluding any evidence that

the victim of that encounter was a four-year-old minor. While cross-examining

Armenta, the prosecutor elicited testimony that Armenta had fired a shotgun and

killed an “innocent bystander” during the 1999 incident. Defense counsel objected,

arguing that the prosecutor had violated the in limine ruling.

      While a prosecutor’s clear violation of a state trial court’s in limine ruling

constitutes prosecutorial misconduct for the purpose of habeas relief, see Hardnett

v. Marshall, 25 F.3d 875, 877–78, 880 (9th Cir. 1994), here, the trial court found

no violation of its limine ruling, and, instead, conceded that its in limine ruling was

“unclear.” Armenta’s prosecutorial misconduct claim therefore requires us to

interpret the trial court’s evidentiary order, and in doing so to make our own

findings on state law issues of admissible evidence. Habeas relief may not be

granted on this basis. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is

not the province of a federal habeas court to reexamine state-court determinations

on state-law questions”); Leinweber v. Tilton, 490 Fed. App’x 54, 57 (9th Cir.

2012) (citing Estelle, 502 U.S. at 63) (“[Petitioner] complains of instances in which

the state trial court admitted prior bad act evidence over defense counsel’s

objection . . . . This contention does not address prosecutorial misconduct [for

purposes of habeas relief] but rather goes to the state trial court’s admission of that

evidence, an issue of state law.”).



                                           5                                     16-55930
      4. Armenta next contends that, during closing argument, the prosecutor

misstated the knock-and-announce rule for executing arrest warrants. The

California Court of Appeal held that Armenta waived this allegation because he

failed to comply with the court’s briefing rule. California courts require every party

to “support each point [in a brief] by argument, and if possible, by citation of

authority.” Cal. Ct. R. 8.204(a)(1)(B). If this requirement is not satisfied, “the court

may treat [the point] as waived, and pass it without consideration.” People v.

Stanley, 897 P.2d 481, 497 (Cal. 1995). This rule is adequate, because it is firmly

established and regularly followed. See, e.g., People v. Hovarter, 189 P.3d 300,

333 (Cal. 2008). It also does not require state courts to inquire into federal law, and

is therefore independent. Coleman v. Thompson, 501 U.S. 722, 734–35 (1991).

Thus, Armenta’s claim is procedurally defaulted, and he is not entitled to habeas

relief on this claim. See id. at 729 (“This Court will not review a question of

federal law decided by a state court if the decision of that court rests on a state law

ground that is independent of the federal question and adequate to support the

judgment.”).

      Additionally, even if Armenta had not procedurally defaulted this claim,

Armenta fails to show that the prosecutor’s closing argument misstated the knock-

and-announce rule. The California Court of Appeal reasonably applied federal law

when it concluded that the prosecutor’s statements were legally accurate. See 18



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U.S.C. § 3109; Payton v. New York, 445 U.S. 573, 616 (1980). Moreover, if the

prosecutor had misstated the law on knock-and-announce, the California Court of

Appeal reasonably concluded that there was no prejudice, because the trial court

admonished the jury multiple times to rely exclusively on its instructions for the

governing law. See Boyde v. California, 494 U.S. 370, 384 (1990) (“[A]rguments

of counsel [that misstate the law] generally carry less weight with a jury than do

instructions from the court.”).

      5. Finally, Armenta asserts that, during closing argument, the prosecutor

misstated a fact when she said Armenta never informed anyone prior to trial about

his fear of the ESR gang. The California Court of Appeal concluded that Armenta

waived this allegation when defense counsel failed to timely object to the

prosecutor’s alleged misstatement of fact during closing argument.

      To preserve a claim for appeal, California’s contemporaneous objection rule

(COR) requires a defendant to “make a timely and specific objection and ask the

trial court to admonish the jury to disregard the impropriety,” unless doing so

would be futile or an admonition would not cure the harm. People v. Clark, 261

P.3d 243, 327 (Cal. 2011) (internal citations omitted). The COR is controlling

when an objection is “so obviously late as to preclude the trial judge from giving it

meaningful consideration.” Melendez v. Pliler, 288 F.3d 1120, 1126 n.7 (9th Cir.

2002). Here, defense counsel’s objection was raised two days after closing



                                          7                                   16-55930
argument, when the jury had already begun deliberations. See People v. Jenkins, 40

Cal. App. 3d 1054, 1057 (1974) (finding defendant’s objections and requests for

admonitions untimely where not asserted until after jury deliberations had begun).

Because the California Court of Appeal concluded that Armenta waived this claim

by failing to object contemporaneously, in violation of the California COR,

Armenta is not entitled to habeas relief on this claim. Fairbank v. Ayers, 650 F.3d

1243, 1256 (9th Cir. 2011) (independent state grounds bars federal courts from

reconsidering issues in habeas review as long as the “state court explicitly invokes

a state procedural bar rule as a separate basis for its decision.”).

      AFFIRMED.




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