                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 17 2013

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




                            FOR THE NINTH CIRCUIT



MITCHELL TATMON,                                 No. 11-16671

              Petitioner - Appellant,            D.C. No. 3:09-cv-00094-WHA

  v.
                                                 MEMORANDUM *
JOHN W. HAVILAND, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                           Submitted January 15, 2013 **
                             San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

       Defendant Mitchell Tatmon appeals from the district court’s denial of his

habeas corpus petition, in which he argued that the prosecutor committed

prosecutorial misconduct by stating three times in his opening argument that he


        *
             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).
could talk about “only one” prior criminal incident. The facts of the case are

known to the parties. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and

we affirm.

      We review a district court’s denial of a habeas petition de novo, under the

standards set forth in AEDPA. Tak Sun Tan v. Runnels, 413 F.3d 1101, 1111 (9th

Cir. 2005). Thus, we may grant habeas relief only if the last reasoned decision of

the state court 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.’” Id. (quoting 28 U.S.C. §

2254(d)(1), (2)). In analyzing a claim of prosecutorial misconduct, the Supreme

Court asks (1) “whether the prosecutor’s remarks were improper,” and (2)

“whether the prosecutor[’s] comments ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’” Id. at 1112 (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

      Tatmon argues that the prosecutor’s references to “only one” crime were

improper because they implied that Tatmon was involved in multiple prior crimes,

and the prosecutor was only permitted to introduce evidence of one prior incident.

Even if the prosecutor’s comments were improper, an issue we do not reach,


                                           2
Tatmon’s claim must fail because the comments did not infect the trial with

unfairness. See id.

      The prosecutor’s comments were not prominent in the context of the entire

trial, particularly since they were only made during opening argument. See Darden,

477 U.S. at 182; see also Donnelly v. DeChristoforo, 416 U.S. 637, 645–47 (1974).

Defense counsel also had an adequate opportunity to rebut the comments. Darden,

477 U.S. at 182. Furthermore, although the trial court declined to give the specific

curative instruction that defense counsel sought, the court did give instructions

explaining that attorneys’ statements do not constitute evidence and that evidence

of a prior offense could only come in for the limited purpose of proving motive,

common design or plan, or intent. See id. at 181–82; see also Bruton v. United

States, 391 U.S. 123, 135 (1968). Finally, the weight of the evidence presented at

trial was clearly against Tatmon. See Darden, 477 U.S. at 181–82. In sum, there

was not a “reasonable probability of a different result,” Hein, 601 F.3d at 915

(internal quotation marks omitted), and the state court’s holding was not in

violation of AEDPA.

      AFFIRMED.




                                          3
