                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WAYNE CLYDE MEZZLES,                            No.    16-56781

                Petitioner-Appellant,           D.C. No.
                                                2:14-cv-07430-JVS-KES
 v.

JOHN N. KATAVICH, Warden,                       MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                       Argued and Submitted March 9, 2018
                              Pasadena, California

Before: W. FLETCHER and OWENS, Circuit Judges, and MOSKOWITZ,** Chief
District Judge.

   Wayne Clyde Mezzles appeals from the district court’s denial of his Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Mr. Mezzles was convicted

of inflicting corporal injury upon a spouse, possession of a deadly weapon, four



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Barry Ted Moskowitz, Chief United States District
Judge for the Southern District of California, sitting by designation.
counts of criminal threats, and two counts of assault. He was sentenced in

accordance with California’s Three Strikes Law and is currently serving an

aggregate 80-years-to-life in state prison. Mr. Mezzles challenges his conviction

on the grounds that the prosecutor’s misconduct in examining the defense expert

witness violated his right to due process and a fair trial. He also challenges his

sentence under the Eighth Amendment to the United States Constitution. Because

the parties are familiar with the facts, we do not recite them here. We have

jurisdiction under 28 U.S.C. § 2253 and we affirm.

   As a threshold matter, the parties dispute whether Mr. Mezzles’ prosecutorial

misconduct claim is barred under California’s procedural default doctrine. The

Court of Appeal held that Mr. Mezzles forfeited his claim under California law

because he failed “to request another admonition.” Under California law, “[i]n

order to preserve a claim of misconduct, a defendant must make a timely objection

and request an admonition; only if an admonition would not have cured the harm is

the claim of misconduct preserved for review.” People v. Williams, 56 Cal.4th

630, 671 (2013) (quoting People v. Alfaro, 41 Cal.4th 1277, 1328 (2007)). When

sitting as a habeas court, the Ninth Circuit “generally respects state court

determinations of state law.” Lopez v. Schriro, 491 F.3d 1029, 1043 (9th Cir.

2007). However, where a state court’s interpretation is “clearly untenable and

amounts to a subterfuge to avoid federal review of a deprivation by the state of


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rights guaranteed by the Constitution,” the Ninth Circuit has recognized an

exception. Id. (quoting Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982)).

   Here, Mr. Mezzles’ trial counsel objected over a dozen times to the prosecutor’s

misconduct, but never requested a jury admonition. On the prosecutor’s last

attempt at asking an improper question, the trial court sua sponte admonished the

prosecutor and directed the jury to disregard the question. After the expert witness

was dismissed, Mr. Mezzles’ trial counsel moved for a mistrial based on the

prosecutor’s misconduct. The trial court denied the motion because it believed

admonishing the prosecutor in front of the jury was sufficient to cure any possible

harm. While California courts have permitted imperfect compliance, we need not

reach the issue of whether here the claim is procedurally defaulted because the

claim fails on its merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.

2002) (“Procedural bar issues are not infrequently more complex than the merits

issues presented by the appeal, so it may well make sense in some instances to

proceed to the merits if the result will be the same.”).

   On its merits, Mr. Mezzles’ claim fails because the misconduct was harmless.

The Court of Appeal held that the prosecutor “engaged in deliberate misconduct

dedicated to the evasion, or outright defiance, of the court’s ruling and

admonitions.” However, the court decided that under any standard, the




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prosecutor’s misconduct was harmless given the trial court’s jury instructions and

presumption that the jurors understood and followed those instructions.

   It is clearly established law under Supreme Court precedent that a prosecutor’s

actions constitute misconduct if they “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)). “When a [Chapman v. California, 386 U.S. 18 (1967)] decision is

reviewed under AEDPA, ‘a federal court may not award habeas relief under §

2224 unless the harmlessness determination itself was unreasonable.’” Rademaker

v. Paramo, 835 F.3d 1018, 1023 (9th Cir. 2016) (quoting Davis v. Ayala, 135 S.

Ct. 2187, 2199 (2015)). However, because on habeas review prosecutorial

misconduct warrants relief only if it “had substantial and injurious effect or

influence in determining the jury’s verdict,” the Ninth Circuit often finds it

sufficient to only address this question. Brecht v. Abrahamson, 507 U.S. 619, 637–

38 (1993); Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2014) (“Because it is more

stringent, the Brecht test ‘subsumes’ the AEDPA/Chapman standard for review of

a state court determination of the harmlessness of a constitutional violation.”);

Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (applying the Brecht standard

to prosecutorial misconduct claim).




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   The prosecutor’s deliberate misconduct was harmless for several reasons. First,

the trial court instructed the jury that “[n]othing the attorneys say is evidence” and

that it must “decide what the facts are in this case,” using “only evidence that was

presented in this courtroom.” The trial court also instructed the jury on specific

intent and the People’s burden of proving it for the criminal threat counts. Under

Supreme Court precedent, a jury is presumed to follow its instructions. Weeks v.

Angelone, 528 U.S. 225, 234 (2000). Second, while the jury did ask two questions

related to the criminal threat counts, none indicated confusion or a particular

struggle over the specific intent element. Though the length of jury deliberations

may be examined when assessing harmlessness, given the charges, a two-day

deliberation is not enough to find that no fairminded jurist would agree that the

prosecutor’s misconduct was harmless. Cf. United States v. Velarde-Gomez, 269

F.3d 1023, 1036 (9th Cir. 2001) (en banc) (finding that a four-day jury deliberation

for a two-count drug importation and possession case was relatively lengthy and

suggested a difficult case).

   Lastly, the weight of the evidence suggests that Mr. Mezzles did not suffer

actual prejudice. Mr. Mezzles argues that the testimony supported that he could

not form a specific intent because he was intoxicated and suffered from PTSD at

the time of the crimes. However, the witnesses also testified to facts that support a

jury’s finding of specific intent. For example, when Mr. Mezzles learned that his


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stepdaughter called the police, he returned to the master bedroom and stated “now

that I’m going to jail for good, I’m going to kill you.” Accordingly, in light of the

evidence, the jury instructions, and the trial court’s vigilance in sustaining Mr.

Mezzles’ objections, he has not been able to demonstrate that the Court of

Appeal’s decision was objectively unreasonable or that the prosecutor’s

misconduct “had substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 637–38.

   Mr. Mezzles also challenges his sentence, arguing that it is in violation of the

Eighth Amendment’s prohibition on cruel and unusual punishment. Relying on

Rummel v. Estelle, 445 U.S. 263, 274 (1980), the Court of Appeal rejected Mr.

Mezzles’ contention that his sentence is grossly disproportionate to his offense and

violates the Eighth Amendment. It stated that “[s]ince [his] strikes include violent

offenses, the justification for a lengthy sentence here is more compelling than in

Rummel.”

   Supreme Court precedent has established “gross disproportionality” as the

controlling principle in assessing a petitioner’s Eighth Amendment claims.

Lockyer v. Andrade, 538 U.S. 63, 73 (2003). In non-capital cases, the court must

first compare the gravity of the offense with the severity of the sentence to

determine whether it is one of the “rare” cases which leads to an inference of gross

disproportionality. See Graham v. Florida, 560 U.S. 48, 59–60 (2010). If the


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sentence gives rise to such an inference, the court next compares the defendant’s

sentence with the sentences received by other offenders in the same jurisdiction

and with the sentences imposed for the same crime in other jurisdictions. Id. at 60.

Therefore, in order for Mr. Mezzles to be entitled to relief, he must demonstrate

that it was objectively unreasonable for the Court of Appeal to determine that this

is not one of the rare cases which leads to an inference of gross disproportionality.

See id.

   While Mr. Mezzles’ 80-years-to-life sentence is harsh, given Mr. Mezzles’

triggering violent offense and criminal history, we cannot say that it is contrary to

or an unreasonable application of clearly established law under AEDPA’s stringent

standards. See 28 U.S.C. § 2254(d). Mr. Mezzles’ triggering conviction is for

inflicting corporal injury upon a spouse, possession of a deadly weapon, making

criminal threats, and misdemeanor assaults. This is certainly not “one of the most

passive felonies a person could commit.” Solem v. Helm, 436 U.S. 277, 296

(1983). Indeed, it is substantially more serious than a conviction for obtaining

money under false pretenses, for uttering a false check, or for theft. See Rummel,

445 U.S. at 275–76; Solem, 463 U.S. at 281; Ewing v. California, 538 U.S. 11, 17–

19 (2003); Andrade, 538 U.S. at 77; Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir.

2004).




                                          7                                    16-56781
   Moreover, his prior convictions underlying the sentence enhancements were

violent as well. Mr. Mezzles was convicted in 1999 for punching a homeless,

wheelchair-bound man in the face and taking his money pouch after the man

refused to give Mr. Mezzles money to buy beer. Mr. Mezzles initially received

probation for the offense but was eventually sentenced to six years in state prison

due to numerous probation violations. In 2007, Mr. Mezzles was convicted for

criminal threats when he left his girlfriend a drunk message threatening to cut her

throat. Mr. Mezzles was on parole for the 1999 conviction when he committed the

2007 offense. He was sentenced to probation and was still on probation when he

committed the triggering offense. Mr. Mezzles also has other prior convictions

which include violent offenses such as misdemeanors for corporal injury upon a

spouse and battery. Therefore, given that his triggering offense and prior

convictions were for violent crimes, we conclude that the Court of Appeal’s

decision rejecting this claim was not objectively unreasonable. See Andrade, 538

U.S. at 70–71.

   AFFIRMED.




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