                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 10 2010

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




                            FOR THE NINTH CIRCUIT



BRUCE L. FRANZEN,                                No. 09-17077

              Petitioner - Appellant,            D.C. No. 3:00-cv-00637-ECR-
                                                 RAM
  v.

E.K. MCDANIEL, Warden; FRANKIE S.                MEMORANDUM *
DEL PAPA,

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                     Argued and Submitted December 7, 2010
                            San Francisco, California

Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

       Bruce Franzen appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. We review de novo the district court’s decision to

deny a habeas petition and review its factual findings for clear error. McMurtrey v.

Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and Effective


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Death Penalty Act of 1996 (“AEDPA”), federal habeas relief may only be granted

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 of the United States” 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)(2). The standard of review is “highly deferential . . . [and] demands that

state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).

      Because the Nevada Supreme Court relied on an improper harmless error

standard, we “revert to the independent harmless error analysis that we would

apply had there been no state court holding.” See Inthavong v. Lamarque, 420

F.3d 1055, 1059 (9th Cir. 2005). We acknowledge that several of the prosecutor’s

comments during closing arguments may have constituted prosecutorial

misconduct. However, in light of the evidence of Franzen’s guilt, we conclude that

the prosecutor’s improper remarks, whether viewed individually or cumulatively,

did not have a “substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal

quotation marks omitted).




                                          2
      We decline to expand the certificate of appealability with respect to

Franzen’s claims that were not certified by the district court.

      AFFIRMED.




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