                                                                             FILED
                           NOT FOR PUBLICATION
                                                                              JUL 25 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DEAN W. HALE,                                    No.    14-17462

              Petitioner-Appellant,              D.C. No. 4:13-cv-02151-PJH

 v.
                                                 MEMORANDUM*
KIM HOLLAND, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                             Submitted July 21, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS, and McKEOWN, Circuit Judges.

      Dean Hale, a California state prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. We have jurisdiction over this appeal

pursuant to 28 U.S.C. §§ 1291 and 2253. We review the district court’s denial of


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hale’s habeas petition de novo, Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014),

and affirm the district court.

                                           I

      The state court did not commit constitutional error by excluding the

impeachment evidence related to Lisa V. Rather, the court permissibly evaluated

the “probative value [and] the potential adverse effects of admitting the defense

evidence.” Holmes v. South Carolina, 547 U.S. 326, 329 (2006). This

discretionary balancing was neither contrary to, nor an unreasonable application of,

clearly established federal law. Moses v. Payne, 555 F.3d 742, 758–59 (9th Cir.

2009).

                                          II

      The California Court of Appeal reasonably concluded that the prosecutor’s

closing argument did not deprive Hale of due process. To rise to the level of a due

process violation, a prosecutor’s closing argument must be more than

“improper”—it must “so infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 180–81

(1986) (citation omitted). Considered as a whole, and in light of the trial court’s

repeated admonishments to the jury that the attorneys’ arguments did not constitute

evidence, the prosecutor’s closing argument did not render the entire trial


                                          2
fundamentally unfair. United States v. Kerr, 981 F.2d 1050, 1053–54 (9th Cir.

1992).

      Further, even if the prosecutor’s argument amounted to a due process

violation, any error was harmless. Hale confessed to the sexual assault consistent

with the allegations of the three victims. Further, this was one of the rare rape

cases in which there is physical evidence of prior sexual penetration. Thus, given

the strength of the state’s case, any improper argument did not have a “substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted).

                                          III

      Hale briefed two uncertified issues, which we interpret as a request to

expand the certificate of appealability (“COA”). However, his arguments on both

issues are foreclosed by the California Court of Appeal’s interpretation of state law

and thus cannot provide a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62,

67–68 (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”). We therefore decline to expand the COA

to reach the uncertified issues. See 28 U.S.C. § 2253(c)(2) (requiring habeas

petitioners seeking a COA to make a “substantial showing of the denial of a

constitutional right”).


                                           3
AFFIRMED.




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