                                                                               FILED
                            NOT FOR PUBLICATION                                OCT 17 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ANTHONY JOE MARTINEZ,                            No. 13-16154

               Petitioner - Appellant,           D.C. No. 2:08-cv-02077-TJH

  v.
                                                 MEMORANDUM*
JAMES A. YATES, Warden,

               Respondent - Appellee.


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

                       Argued and Submitted October 6, 2014
                             San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

        Anthony Joe Martinez appeals from a judgment of the district court denying

his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

Because the parties are familiar with the history of this case, we need not recount it

here.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I

      The district court properly concluded that Martinez is not entitled to habeas

relief on his claim that his federal due process rights were violated by the trial

court’s failure to sever for trial the criminal charges relating to two separate

incidents.

      A federal court may grant a habeas petition if the state court’s adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). There is no clearly established

Supreme Court precedent dictating when a trial in state court must be severed.

Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012) (“[T]here is no clearly

established federal law requiring severance of criminal trials in state court even

when the defendants assert mutually antagonistic defenses.”).

       The Supreme Court noted in a footnote in United States v. Lane that

“misjoinder would rise to the level of a constitutional violation only if it results in

prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.”

474 U.S. 438, 446 n.8 (1986). However, we have held that this footnote in Lane

does not qualify as clearly established federal law under federal habeas law.

Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (“The footnote upon


                                           2
which Collins relies did not set forth the governing legal principle in Lane. It was

merely a comment.”).

      Further, the record discloses that there was no due process violation. The

evidence as to the two incidents was cross-admissible under California Evidence

Code § 1101(b) (uncharged misconduct may be used to prove identity). The

evidence presented was distinct, and the jury was given instructions to consider the

two crimes separately. See Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1988)

(concluding that “prejudice generally does not arise from joinder when the

evidence of each crime is simple and distinct, even in the absence of cross-

admissibility”). There is no indication in the record that the jury failed to

distinguish between the evidence presented in the two cases. Nor was there a

significant disparity in the relative strength of the two cases. In both incidents,

eyewitnesses identified Martinez as the perpetrator. The district court properly

denied relief.

                                          II

      The district court also properly concluded that the state court’s decision

denying Martinez relief on his prosecutorial misconduct claim was not contrary to

and did not involve an unreasonable application of clearly established Supreme

Court precedent. 28 U.S.C. § 2254. The prosecutor’s comments on the reasonable


                                           3
doubt standard did not “so infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.” Parker v. Matthews, 132 S.Ct. 2148, 2153

(2012) (internal quotations and citation omitted). Nor did Martinez demonstrate

that statements made by the prosecutor introduced facts not in evidence.

      Martinez’s claims that the prosecutor improperly vouched for witnesses and

referenced facts outside the record are procedurally barred. Martinez did not

receive ineffective assistance of counsel, and therefore this procedural bar is not

circumvented by a showing of prejudice. See Coleman v. Thompson, 501 U.S.

722, 750 (1991).

                                          III

      Given the lack of constitutional error, the district court also properly rejected

Martinez’s argument that he is entitled to relief based on cumulative error.

      AFFIRMED.




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