                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 29 2013

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



                           FOR THE NINTH CIRCUIT


SERGIO RODRIGUEZ,                            No. 12-55515

              Petitioner - Appellant,        D.C. No. 3:11-cv-01216-IEG-WVG

       v.
                                             MEMORANDUM*
BRENDA M. CASH, Warden,

              Respondent - Appellee.

                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                             Submitted May 9, 2013**
                               Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
        Judge.***




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
           The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
      Sergio Rodriguez appeals the district court’s order dismissing with prejudice

the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      Rodriguez contends that the state court unreasonably applied Griffin v.

California, 380 U.S. 609, 615 (1965), by failing to find error when the prosecutor

made impermissible comments about Rodriguez’s failure to testify at trial. “While

a direct comment about the defendant’s failure to testify always violates Griffin, a

prosecutor’s indirect comment violates Griffin only ‘if it is manifestly intended to

call attention to the defendant’s failure to testify, or is of such a character that the

jury would naturally and necessarily take it to be a comment on the failure to

testify.’” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (quoting Lincoln v.

Sunn, 807 F.2d 805, 809 (9th Cir. 1987)).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) standard, the state court’s conclusion that no error occurred was

neither an unreasonable application of Griffin nor an unreasonable determination

of the facts. See 28 U.S.C. § 2254(d). Although Rodriguez contends the

prosecutor made an indirect reference to his failure to testify, when viewed in

context, the prosecutor was referring to defense counsel’s failure to rebut certain

questions raised about the evidence. A comment on the failure of defense counsel


                                            2
to counter or explain the testimony presented or the evidence introduced is not a

Griffin violation, where, as here, it is “not in any manner directed at the

[defendant’s] failure to take the stand.” United States v. Mares, 940 F.2d 455, 461

(9th Cir. 1991); see also United States v. Sarno, 73 F.3d 1470, 1498-99 (9th Cir.

1995); United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995).

      AFFIRMED.




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