                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 03 2010

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




                             FOR THE NINTH CIRCUIT



KENYATTA LATCHISON,                               No. 09-16340

                Petitioner - Appellant,           D.C. No. 2:07-cv-00370-FCD-
                                                  CHS
  v.

T. FELKER,                                        MEMORANDUM *

                Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Eastern District of California
            Frank C. Damrell, Senior United States District Judge, Presiding

                         Argued and Submitted May 13, 2010
                              San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.




       Kenyatta Latchison appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Latchison was convicted of second-degree murder and assault on a child

causing death. He argues that two of the prosecutor’s comments during closing

arguments constituted prosecutorial misconduct, and that his trial counsel provided

ineffective assistance by failing to object to one of the comments.

      The prosecutor’s first comment addressed the burden of proof only

indirectly, the jury was properly instructed, and the prosecutor’s prior and

subsequent statements correctly set forth the burden of proof. Accordingly,

Latchison cannot show that the remark “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

623 (1993) (citation omitted). For the same reasons, he cannot show that “there is

a reasonable probability that, but for counsel’s [failure to object to the remark,] the

result of the proceeding would have been different.” Strickland v. Washington,

466 U.S. 668, 694 (1984).

      The state court construed the prosecutor’s second comment as a permissible

attack on the credibility of a defense witness. Because that decision was not an

unreasonable application of Darden v. Wainwright, 477 U.S. 168 (1986), Latchison

is not entitled to federal habeas relief. See 28 U.S.C. § 2254(d)(1).

      AFFIRMED.




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