                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 20 2010

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




                            FOR THE NINTH CIRCUIT



MARKELLE NEAL TAYLOR,                            No. 08-17583

              Petitioner-Appellant,              D.C. No. 2:05-cv-0078-MCE-
                                                 GGH
  v.

THOMAS CAREY,                                    MEMORANDUM *

              Respondent-Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                         Morrison C. England, Presiding

                     Argued and Submitted September 14, 2010
                             San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS,** Senior District
Judge.

       Petitioner Markelle Neal Taylor, a California state prisoner, appeals from the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have

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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
      Taylor brings a claim of prosecutorial misconduct. We will not reach the

procedural default issue, because the prosecutorial misconduct claim fails on the

merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

      The alleged misconduct relates to testimony given by a Deputy District

Attorney during Taylor’s trial in state court. The Deputy District Attorney, Chris

Ore, handled the initial phase of the prosecution and interviewed witnesses.

Eventually, another prosecutor took over the case, and Ore was called as a witness.

Ore violated a court order while testifying by volunteering unsupported speculation

that one of the witnesses had been improperly influenced.

      The Respondent has argued that when Ore testified, he was neither (1) an

agent of the prosecution, nor (2) engaged in a prosecutorial function. We reject

these arguments, and hold that Ore’s improper conduct is attributable to the

prosecution under Giglio v. United States, 405 U.S. 150, 154-55 (1972).

      However, constitutional error alone is not sufficient to grant relief, because

Taylor must also demonstrate that he was prejudiced by the error. See Allen v.

Woodford, 395 F.3d 979, 998 (9th Cir. 2005).

      In this instance, the state trial court worked with the prosecution and the

defense to limit the impact of Ore’s testimony. The court redacted the offensive




                                          2
portion of the transcript, and the prosecution and the defense agreed to a stipulation

that the trial court read to the jury.

       We hold that the remedial action taken by the state trial court limited the

impact of Ore’s inappropriate comments and, as a result, Taylor was not

prejudiced. See Allen, 395 F.3d at 998. Considering the curative action taken by

the trial court, and the weight of the evidence, Taylor was not deprived of a fair

trial. See id.

       AFFIRMED.




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