                                                                              FILED
                             NOT FOR PUBLICATION                               JUN 10 2011

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



                             FOR THE NINTH CIRCUIT


ELLIOT LAMONT ROGERS,                            No. 09-16759

       Petitioner - Appellant,                   D.C. No. 2:05-cv-01395-DAD

 v.
                                                 MEMORANDUM*
MARK SHEPHERD,

       Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Eastern District of California
                     Dale A. Drozd, Magistrate Judge, Presiding

                            Submitted February 14, 2011 **
                              San Francisco, California

      Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, 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 Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
      Petitioner-appellant Elliot Lamont Rogers appeals the district court’s denial

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his

California state court conviction for second degree robbery with use of a firearm

and being a felon in possession of a firearm for which he was sentenced to a prison

term of 64 years to life. We have jurisdiction pursuant to 28 U.S.C. § 2253 and

review the district court’s denial of the petition de novo. Pinholster v. Ayers, 590

F.3d 651, 662 (9th Cir. 2009).

      Rogers’s claims are the following: (1) his initial trial counsel rendered

ineffective assistance by failing to call two witnesses at an evidentiary hearing on

his motion to suppress; (2) his replacement trial counsel provided ineffective

assistance by failing to renew Rogers’s motion to dismiss at the close of trial; (3)

his appellate counsel rendered ineffective assistance by failing to raise on direct

appeal the ineffectiveness of Rogers’s trial counsel; and (4) a comment by the

prosecutor during closing arguments constituted prosecutorial misconduct. We

affirm.

      1.      We will grant a § 2254 petition only if the state court decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States” or “was based on

an unreasonable determination of the facts in light of the evidence presented in the


                                          2
State court proceeding.” 28 U.S.C. § 2254(d); see Byrd v. Lewis, 566 F.3d 855,

859 (9th Cir. 2009). The pertinent state court “decision” does not require a

statement of reasons, an opinion, or a citation of Supreme Court cases. Harrington

v. Richter, 131 S. Ct. 770, 784-85 (2011). Where, as here, the state court’s

decision is “unaccompanied by an explanation,” Rogers must still meet his burden

“by showing there was no reasonable basis for the state court to deny relief.” Id. at

784. “This is so whether or not the state court reveals which of the elements in a

multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,’ not a

component of one, has been adjudicated.” Id. Because Rogers asserts claims of

ineffective assistance of counsel under the Sixth Amendment, “the relevant clearly

established law derives from” Strickland v. Washington, 466 U.S. 668 (1984).

Premo v. Moore, 131 S. Ct. 733, 737-38 (2011). Strickland requires proof of both

deficient performance by counsel and prejudice to the petitioner. Id. at 739.

However, on § 2254 review, “[t]he pivotal question is whether the state court’s

application of the Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below Strickland’s standard.”

Richter, 131 S. Ct. at 785. Where the federal court’s review requires that the

standards of Strickland and § 2254(d) be applied “in tandem,” its review must be

“doubly” deferential. Id. at 788.


                                          3
      2.     Rogers argues that his initial trial counsel was ineffective in failing to

call two witnesses to testify at an evidentiary hearing on a motion to suppress

evidence seized during a warrantless search of his wife’s apartment. The fighting

issue at the suppression hearing was whether Rogers resided at the apartment. This

is because no warrant was required, due to Rogers’s parolee status, if the police

had probable cause to believe Rogers was a resident of the apartment. Motley v.

Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc) (“[B]efore conducting a

warrantless search pursuant to a parolee’s parole condition, law enforcement

officers must have probable cause to believe that the parolee is a resident of the

house to be searched.”). Rogers contends that, had his counsel called two

witnesses, his wife and the apartment manager, it is more probable than not that the

search could not have been justified as a parole search and the trial court would

have granted his motion to suppress evidence seized from the apartment. Rogers

further argues that if the trial court had granted the motion to suppress, a

reasonable probability exists that the outcome of the trial would have been

different. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where defense

counsel’s failure to litigate a Fourth Amendment claim competently is the principal

allegation of ineffectiveness, the defendant must also prove that his Fourth

Amendment claim is meritorious and that there is a reasonable probability that the


                                           4
verdict would have been different absent the excludable evidence in order to

demonstrate actual prejudice.”).

      The California Supreme Court was not objectively unreasonable in rejecting

Rogers’s claim of ineffective assistance against his initial trial counsel for failure to

call the two witnesses at his suppression hearing. The state postconviction court

reasonably could have determined that Rogers’s initial trial counsel’s performance

was not deficient in deciding against calling either witness to testify at the

suppression hearing. Rogers’s initial trial counsel made the decision to not call

Rogers’s wife and instead to call Rogers’s ex-wife. Rogers’s ex-wife testified that

Rogers was staying with her at her apartment “full time” because “he didn’t have a

place to stay.” Rogers’s ex-wife also testified that she had given him

approximately $2,000 to purchase an automobile shortly before the date of the

robbery. Rogers’s initial trial counsel made his election to call Rogers’s ex-wife

and not call Rogers’s wife after having spoken to Rogers’s wife and with full

knowledge of her anticipated testimony. Thus, Rogers’s initial trial counsel had

investigated the possibility of calling Rogers’s wife to testify but apparently made

a tactical decision not to do so, because he apparently believed she would not have

provided credible or consistent testimony, and instead chose to rely on the ex-

wife’s testimony. Such a decision is “virtually unchallengeable.” Wiggins v.


                                           5
Smith, 539 U.S. 510, 521 (2003). Initial trial counsel’s decision not to call

Rogers’s wife did not fall outside the wide range of reasonable professional

conduct. Because both women would have testified to having given Rogers

approximately $2,000 shortly before the robbery, counsel could rightly have been

concerned that, were both women to testify at the suppression hearing, their

testimony may have been viewed as fabricated or collusive. Moreover, Rogers’s

wife would have been subject to cross-examination regarding why, when initially

contacted by law enforcement personnel, she readily admitted that Rogers was her

husband but did not tell the contacting police officer that Rogers did not live with

her at the apartment. She also would have been subject to questioning about a

statement she made to a law enforcement officer on the day of the search that

Rogers had been at her apartment with her children when she left for work that

morning. In addition, Rogers’s wife would have been open to questioning about

why Rogers, if he was not a resident of the apartment, was listed on her rental

application as one of its “proposed occupants.”

      Similarly, Rogers’s initial trial counsel’s decision not to call the apartment

manager to testify at the suppression hearing was an apparent tactical decision

which did not fall outside the wide range of reasonable professional conduct.

Although the apartment manager would have testified that Rogers was not named


                                          6
in the apartment’s rental agreement as an occupant, she also would have testified

that Rogers was listed as a proposed resident on the apartment’s rental application

and that she believed that Rogers was living with his wife in the apartment based

on her contacts with Rogers’s wife and telephone calls to the apartment.

      Because we determine that Rogers’s initial trial counsel’s performance was

not deficient, we do not reach Strickland’s prejudice prong. See, e.g., Butcher v.

Marquez, 758 F.2d 373, 377 (9th Cir. 1985).

      3.     Given that Rogers’s claim of ineffective assistance of his initial trial

counsel lacks merit, his replacement trial counsel and appellate counsel exercised

reasonable judgment in declining to raise that claim as a basis for a renewed

motion to dismiss or as an issue on direct appeal.

      4.     We affirm the district court’s denial of Rogers’s request for an

evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2). As discussed, Rogers has

not “‘alleged facts that, if proven, would entitle him to habeas relief.’” Earp v.

Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (quoting Williams v. Woodford, 384

F.3d 567, 586 (9th Cir. 2004)).

      5.     Rogers also argues that a single comment by the prosecutor during

closing arguments constituted prosecutorial misconduct in violation of due process.

“[T]he touchstone of due process analysis in cases of alleged prosecutorial


                                           7
misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith

v. Phillips, 455 U.S. 209, 219 (1982). The conduct must be examined to determine

“whether, considered in the context of the entire trial, that conduct appears likely to

have affected the jury’s discharge of its duty to judge the evidence fairly.” United

States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). Here, the prosecutor made a

single comment. He commented on his belief that, “I think the person who

committed this robbery and I know the person who committed this robbers [sic] is

sitting in the courtroom today.” Defense counsel immediately objected to the

comment and the trial court admonished the prosecutor to avoid such personal

opinion commentaries. The prosecutor offered no further personal opinions about

Rogers’s guilt.

      We acknowledge that the prosecutor’s comment during closing arguments

constituted prosecutorial misconduct. See United States v. Wright, 625 F.3d 583,

610 (9th Cir. 2010). However, on a petition for a writ of habeas corpus, the

standard of review for a claim of prosecutorial misconduct is “‘the narrow one of

due process, and not the broad exercise of supervisory power.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 642 (1974)). “The relevant question is whether the prosecutor[’s]

comments ‘so infected the trial with unfairness as to make the resulting conviction


                                          8
a denial of due process.’” Id. (quoting Donnelly, 416 U.S. at 643). We must defer

to the California courts’ conclusion that the prosecutor’s single act of misconduct

here did not so taint the trial as to violate due process, unless that conclusion was

either contrary to or an objectively unreasonable application of clearly established

federal law. We conclude it was neither. The prosecutor’s improper comment here

was an isolated incident in a lengthy trial and was immediately addressed by the

trial court. Thus, the prosecutor’s misconduct did not permeate the trial. In light

of the evidence of Rogers’s guilt, we conclude that the prosecutor’s improper

remark did not have a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation

omitted); see United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005)

(holding prosecutor’s single improper closing comment stating the government’s

belief that defendant committed the crime was harmless given the prosecutor’s

immediate rephrasing of statement upon defendant’s objection and when viewed in

the context of the trial as a whole); Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.

1995) (holding petitioner not entitled to habeas relief based on prosecutor’s single

improper comment).

      AFFIRMED.




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