                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                           JAN 07 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

 DAVID P. GONZALEZ,                               No. 07-55280

               Petitioner - Appellant,            D.C. No. CV-06-02887-TJH

   v.
                                                  MEMORANDUM *
 G. J. GIURBINO, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                      Terry J. Hatter, District Judge, Presiding

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        California state prisoner David P. Gonzalez appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition challenging his jury

conviction for second degree murder. We have jurisdiction pursuant to 28 U.S.C.

          *
             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).

EG/Research
§ 2253, and we affirm.

       Gonzalez contends that the prosecutor committed misconduct in closing

argument by suggesting that defense counsel believed Gonzalez was guilty and

arguing facts not in evidence. The California Court of Appeal’s determination that

there was no misconduct was not contrary to or an unreasonable application of

federal law. See 28 U.S.C. § 2254(d). The prosecutor’s comments on the

defense’s inconsistent theories of mistaken identity and self-defense and on the

veracity of the key defense witness’s testimony did not constitute misconduct. See

Tak Sun Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (stating that under

standards applicable to prosecutorial misconduct claims in habeas cases, first

question is whether prosecutor’s remarks were improper).

       Gonzalez also contends that trial counsel was ineffective in failing to object

to the prosecutor’s statements. Because the prosecutor’s statements did not

constitute misconduct, trial counsel’s failure to object did not constitute ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). See

Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (stating that trial counsel

cannot have been ineffective in failing to raise a meritless objection).

       AFFIRMED.




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