                                                                            FILED
                            NOT FOR PUBLICATION                              APR 27 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES RAY MOORE,                                  No. 08-56907

             Petitioner - Appellant,              D.C. No. 3:07-cv-00141-IEG-AJB

  v.
                                                  MEMORANDUM *
DERRICK OLLISON, Warden,

             Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                              Submitted April 7, 2010 **
                                Pasadena, California

Before: PREGERSON, BEEZER and THOMPSON, Circuit Judges.

       James Ray Moore (“Moore”) was convicted of first degree residential

burglary in California state court and sentenced to 25 years to life in prison. The

district court denied Moore’s federal habeas petition, but granted a certificate of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appealability on the following issues: (1) whether the trial court erred by not

requiring the prosecutor to justify its peremptory strike of the only African-

American on the jury panel; (2) whether the prosecutor’s alleged misconduct

during his closing statement constitutes reversible error; (3) whether Moore

received ineffective assistance of counsel because his trial counsel failed to

investigate; and (4) whether Moore’s sentence constitutes cruel and unusual

punishment. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We affirm.

I.    Standard of Review

      The district court’s denial of Moore’s habeas petition is reviewed de novo.

See Luna v. Cambra, 306 F.3d 954, 959 (9th Cir. 2002), amended by 311 F.3d 928

(9th Cir. 2002). Because Moore’s petition is subject to the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief is only

available if the state court’s decision was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court.

28 U.S.C. § 2254(d)(1). “The relevant state court determination for purposes of

AEDPA review is the last reasoned state court decision.” Delgadillo v. Woodford,

527 F.3d 919, 925 (9th Cir. 2008). Here, we review the California Court of Appeal

decision to determine whether habeas relief is available under AEDPA.

II.   Peremptory Strike


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       The trial court did not err by failing to require the prosecutor to justify his

exercise of a peremptory strike to dismiss the only African American on the jury

panel. Under clearly established federal law, the trial court is only required to ask

the prosecutor to justify his exercise of a peremptory strike if the defendant raises

an inference of discrimination from the “totality of the relevant facts.” See

Johnson v. California, 545 U.S. 162, 168 (2005).

       Here, defendant Moore and the dismissed juror shared the same ethnicity,

but under the totality of the circumstances, that fact was not sufficient to raise an

inference that the prosecutor was motivated by racial animus because during voir

dire, the juror stated that her family had been friends with defendant Moore’s

family for 38 years, providing an obvious race-neutral explanation for the strike.

See also United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)

(holding that “the fact that the juror was the one Black member of the venire does

not, in itself, raise an inference of discrimination” and that “[a] district court must

consider the relevant circumstances surrounding a peremptory challenge”).

III.   Prosecutorial Misconduct

       Moore alleges that the prosecutor engaged in multiple instances of

misconduct during his closing argument, including: (1) vouching for the credibility

of witnesses; (2) stating facts not in evidence; (3) improperly referring to Moore’s


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prior felony convictions; and (4) misstating and shifting the burden of proof.

Moore argues that these errors individually and cumulatively prejudiced him.

Moore’s arguments fail.

      First, the prosecutor did not engage in misconduct, with the possible

exception of vouching for the credibility of witnesses.1 The prosecutor did not

state facts not in evidence during closing argument; he merely drew reasonable

inferences from the evidence. See United States v. Bracy, 67 F.3d 1421, 1431 (9th

Cir. 1995). The prosecutor also did not improperly refer to Moore’s prior felony

convictions; he referred to them for the limited purpose of judging Moore’s

credibility. Finally, Moore’s contention that the prosecutor misstated and shifted

the burden of proof during his closing argument is procedurally defaulted because


      1
         Even if the prosecutor engaged in the misconduct of vouching for the
credibility of witnesses, there was no “substantial and injurious effect” on the
jury’s verdict. Moore argues that “the prosecutor’s vouching had a substantial and
injurious effect because the credibility of Mr. Moore and the officers was crucial to
the case.” In United States v. Molina, 934 F.2d 1440 (9th Cir. 1991), we held that
“[v]ouching is especially problematic in cases where the credibility of witnesses is
crucial.” Id. at 1445. We differentiated between commenting on “flatly
contradictory testimony,” which is permissible because the inference is
unavoidable that someone is lying, and commenting on the credibility of non-
testifying witnesses, which is not permissible because it “cannot be considered an
inference based on the evidence.” Id. at 1445-46. Here, the prosecutor only
commented on “flatly contradictory testimony,” which is permissible because the
inference is that someone is lying. In any case, there was no substantial and
injurious effect on the jury’s verdict because of the overwhelming evidence against
Moore as discussed below.

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he did not timely object. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)

(holding that federal habeas relief is barred when the prisoner failed to meet a state

procedural requirement); People v. Sapp, 73 P.3d 433, 463 (Cal. 2003) (holding

that a defendant’s failure to object to prosecutorial misconduct waives the issue on

appeal).

      Second, Moore failed to demonstrate that any of the alleged acts of

prosecutorial misconduct had a “substantial and injurious effect” on the jury’s

verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The jury was faced

with considerable evidence that Moore committed the burglary. It is undisputed

that the neighbor who called 911 to report that someone was breaking into the

victim’s apartment later identified Moore as the burglar. It is also undisputed that

the officers who responded to the 911 call observed Moore inside the victim’s

apartment and that Moore fled before he was ultimately apprehended. The

victim’s distinctive heart-shaped penny was found on Moore after he was arrested.

Although Moore testified that he did not take the penny and suggested that officers

planted the penny on him, there was no evidence to support this. Given the

considerable evidence of Moore’s guilt, the California Court of Appeal reasonably

concluded that Moore had not been prejudiced by any of the alleged acts of

prosecutorial misconduct.


                                           5
IV.   Ineffective Assistance of Counsel

      Moore contends that his conviction should be reversed because trial counsel

provided ineffective assistance by failing to conduct a reasonable investigation. He

alternatively requests an evidentiary hearing. Moore’s contention that a reasonable

investigation would have produced corroborating evidence is purely speculative.

As discussed above, the jury was presented with considerable evidence that Moore

committed the burglary. Moore has not shown a reasonable probability that an

investigation would have affected the outcome of the proceeding. Because any

incompetence by trial counsel was not prejudicial, we affirm the district court. See

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

V.    Sentencing

      The trial court sentenced Moore to 25 years to life because he had three prior

strike convictions. Moore contends that his sentence amounts to cruel and unusual

punishment because it is grossly disproportionate to his conviction and criminal

history. Under clearly established federal law, a sentence for a term of years only

qualifies as cruel and unusual punishment in “rare and extreme case[s].” See

Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quotation marks deleted).

      Here, Moore was convicted of residential burglary, a “serious felon[y]” with

a high potential for violence. See Ewing v. California, 538 U.S. 11, 30 (2003).


                                          6
Moore has committed at least seven previous offenses—including three residential

burglaries and two non-residential burglaries—and violated probation or parole on

six separate occasions. Therefore, we hold that it was not unreasonable for the

California Court of Appeal to conclude that Moore’s sentence was not grossly

disproportionate to his offense and criminal history.

VI.   Conclusion

      For the foregoing reasons, we affirm the district court and deny the petition.

      AFFIRMED.




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