                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 19 2010

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




                            FOR THE NINTH CIRCUIT



DAVID ALLEN BERRY,                               No. 08-56281

              Petitioner - Appellant,            D.C. No. 8:07-cv-00323-ABC-
                                                 AJW
       v.

COLLEEN PRECIADO, Orange County                  MEMORANDUM *
Chief Probation Officer; MICHAEL S.
CARONA, Orange County Sheriff;
EDMUND G. BROWN, Jr., Attorney
General of California,

              Respondents - Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                      Argued and Submitted October 7, 2010
                              Pasadena, California

Before: FISHER and BYBEE, Circuit Judges, and STROM, District Judge.**

      David Allen Berry appeals the district court’s denial of Berry’s 28 U.S.C.

§ 2254 habeas petition, contending that prosecutorial misconduct violated his

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Lyle E. Strom, Senior United States District Judge for the
District of Nebraska, sitting by designation.
Fourteenth Amendment due process right to a fair trial and his Sixth Amendment

right to effective assistance of counsel. We affirm.

      The California Court of Appeal held that the prosecutor committed

misconduct by presenting Berry’s expert with inadmissible evidence concerning an

email from Berry to the expert. Under 28 U.S.C. § 2254, we must defer to the state

appellate court’s conclusion that the misconduct did not infect the trial with

unfairness sufficient to establish a due process violation under Darden v.

Wainwright, 477 U.S. 168 (1986), and Donnelly v. DeChristoforo, 416 U.S. 637

(1974), unless that conclusion was either contrary to or an objectively

unreasonable application of clearly established federal law. It was neither.

Accordingly, the district court did not err in according deference to the state

appellate court’s decision. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Luna

v. Cambra, 306 F.3d 954, 960, amended in 311 F.3d 928 (9th Cir. 2002).

      The divergent outcomes on David and Ellen Berry’s mistrial motions do not

compel the conclusion that David Berry’s right to a fair trial was violated. The

trial court declared a mistrial as to Ellen Berry based on its worry that the improper

email evidence might have violated Ellen Berry’s right to confront witnesses

against her. That decision did not necessarily imply that the jury would not heed




                                           2
the trial court’s repeated instruction to disregard the email. Thus the grant of a

mistrial as to Ellen Berry does not establish that David Berry’s trial was unfair.

      The state appellate court’s conclusion that prosecutorial misconduct did not

deprive Berry of his right to effective assistance of counsel is also entitled to

deference under 28 U.S.C. § 2254. The court’s conclusion that the prompt and

emphatic curative instructions were adequate to correct any damage to the jury’s

perception of Berry’s attorney was not objectively unreasonable.

      Accordingly, we affirm the district court’s denial of Berry’s habeas petition.

      AFFIRMED.




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