                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 07 2011

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




                            FOR THE NINTH CIRCUIT



JOE KELLY ARMSTEAD,                              No. 10-16324

              Petitioner - Appellant,            D.C. No. 2:07-cv-01337-LRH

  v.
                                                 MEMORANDUM *
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                      Argued and Submitted August 29, 2011
                            San Francisco, California

Before: FISHER and RAWLINSON, Circuit Judges, and WRIGHT, District
        Judge.**

       Joe Kelly Armstead, a Nevada state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
pursuant to 28 U.S.C. § 2253. We review a district court’s denial of a habeas

petition de novo and its factual findings for clear error. Stanley v. Cullen, 633 F.3d

852, 859 (9th Cir. 2011).

      Federal habeas relief is warranted only 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,” or “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)(1)-(2). The standard of review is “highly

deferential . . . [and] demands that state-court decisions be given the benefit of the

doubt.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (quoting Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

      Armstead first argues that he was denied his due process right to a fair trial

because of alleged prosecutorial misconduct, which he maintains portrayed him as

a drug dealer and supplied a motive for murder. He contends this inference had a

substantial and injurious effect on the jury’s verdict. The relevant inquiry is

“whether 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)). Neither the testimony elicited by the prosecutor nor the remarks during


                                           2
closing argument infected the trial with unfairness rendering Armstead’s

conviction a denial of due process. There was no direct evidence that Armstead

was a drug dealer, that he was selling or dealing drugs with Leal, or that the money

Armstead allegedly demanded from Leal just prior to the shooting was from a drug

transaction. Viewed against the backdrop of the overwhelming evidence against

Armstead, including that he entered the trailer, engaged in a struggle with Leal,

told Leal he wanted his money, possessed a gun, and shot Leal during the struggle,

any alleged misconduct could have had only a slight effect on the jury, if at all.

Thus, the denial of Armstead’s petition for a writ of habeas corpus on this ground

“was [not] contrary to, [n]or [did it] involve[] an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” nor “was

[it] 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).

      Similarly, even assuming that the Nevada State Supreme Court improperly

placed the burden of proof on Armstead to show that the alleged prosecutorial

misconduct was prejudicial beyond a reasonable doubt, conducting an independent

harmless error analysis we conclude that it was not likely that the alleged

prosecutorial misconduct “had a substantial and injurious impact on the verdict.”




                                           3
Taylor v. Maddox, 366 F.3d 992, 1016-17 (9th Cir. 2004); see also Brecht v.

Abrahamson, 507 U.S. 619 (1993).

      Armstead also argues that the state trial court’s denial of his motion for a

new trial was an abuse of discretion because the alleged prosecutorial misconduct

allowed the jury to improperly reach its verdict. The relevant inquiry is whether

the decision of the trial court to deny the motion for a mistrial made the trial

fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 67-68, 75 (1991). For

the reasons discussed above, we answer that question in the negative.

      AFFIRMED.




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