                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIE LOUIS THOMPSON,                          No.    16-15203

                Petitioner-Appellant,           D.C. No.
                                                4:12-cv-02850-CW (PR)
 v.

G. J. JANDA,                                    MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Claudia Wilken, District Judge, Presiding

                       Argued and Submitted May 14, 2018
                            San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District
Judge.

      Petitioner-Appellant Willie Louis Thompson appeals from the district court

order denying him habeas relief under 28 U.S.C. § 2254. We have jurisdiction

pursuant to 28 U.S.C. § 2253(a). We review de novo. Greene v. Lambert, 288 F.3d



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
1081, 1089 (9th Cir. 2002).

      Under AEDPA, we may only grant a habeas petition if the underlying state

court’s decision is (1) “contrary to” or an “unreasonable application of[ ] clearly

established Federal Law, as determined by the Supreme Court of the United

States,” or (2) 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)(1)–(2); see

also Tak Sun Tan v. Runnels, 413 F.3d 1101, 1111–12 (9th Cir. 2005) (explaining

standard). This is a “‘highly deferential standard for evaluating state-court rulings,’

which demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v.

Murphy, 521 U.S. 320, 333 n.7 (1997)).

      1.     Calls for Justice. The California Court of Appeal did not unreasonably

apply federal law in determining that the prosecutor’s appeals to the conscience of

the community did not constitute misconduct. “An appeal to the jury to be the

conscience of the community is not impermissible unless it is ‘specifically

designed to inflame the jury.’” United States v. Koon, 34 F.3d 1416, 1444 (9th Cir.

1994) (quoting United States v. Williams, 989 F.2d 1061, 1072 (9th Cir. 1993);

United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)). No prejudicial error

will be found where the comment is isolated and the court instructs the jury that its

function is to determine guilt or innocence based on the evidence of the case, and


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not counsel’s statements. See Koon, 34 F.3d at 1445. The trial court instructed the

jury on the prosecutor’s comments both at the time the comments were made and

also in its general jury instructions. Viewed in the context of Petitioner-Appellant’s

trial and appellate record on the whole, we do not conclude the prosecutor’s

statements “affected the jury’s ability to judge the evidence fairly.” Williams, 989

F.2d at 1072. We affirm the district court’s ruling on this ground.

      2.     Felon Status. Nor did the California Court of Appeal unreasonably

apply federal law when it determined that the prosecutor’s reference to the

defendants as felons resulted in no denial of Due Process. While it was

inappropriate for the prosecutor to contravene an in limine order of the trial court

by referring to the defendants as felons in his closing statements when discussing

the murder charges, they did not “so infect[ ] the trial with unfairness as to make

the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S.

168, 181 (1986) (quotation marks and citation omitted). The jury was already

aware that defendants were felons (the trial court told the jury that defendants had

stipulated as such), and the trial court also instructed the jury to consider the

murder and felon-in-possession charges separately. Therefore, as the California

Court of Appeal noted, “the prosecutor’s closing remarks, when read in context,

did not so exploit the admission into evidence of Defendants’ felon status as to

require reversal.” We affirm the district court’s ruling on this ground.


                                           3
      3.     Procedural Default. Because Petitioner-Appellant’s trial counsel did

not object at trial to the prosecutor’s statements comparing Defendants to “pack

animals,” that claim is procedurally defaulted. Jackson v. Giurbino, 364 F.3d 1002,

1006–07 (9th Cir. 2004). The California Court of Appeal expressly invoked

counsel’s failure to object as a state procedural bar. Thus, we are also unable to

review this claim because the state court’s “procedural bar rule was an independent

and alternative basis for denial of the petition.” Loveland v. Hatcher, 231 F.3d 640,

643 (9th Cir. 2000); see also Coleman v. Thompson, 501 U.S. 722, 729 (1991).

      4.     Strickland. Given the “doubly deferential” standard for ineffective

assistance claims in the habeas corpus context, Yarborough v. Gentry, 540 U.S. 1,

6 (2003), the state court did not unreasonably apply Strickland v. Washington, 466

U.S. 668 (1984). The prosecutor’s language concerning “pack animals,” while

colorful, did not prejudice the defense. The remarks were even less extreme than

those of the prosecutors in Darden, where the Supreme Court found no

constitutional violation. Darden, 477 U.S. at 180 nn.10–12. We decline to grant

habeas relief on this ground.

AFFIRMED.




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