                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 21 2013

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




                            FOR THE NINTH CIRCUIT



WILLIE HARRIS,                                    No. 10-55628

              Petitioner - Appellant,             D.C. No. 2:05-cv-08676-SVW-JC

  v.
                                                  MEMORANDUM *
SCOTT M. KERNAN,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                            Submitted February 4, 2013 **
                               Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

       Petitioner-Appellant Willie Harris appeals the district court’s denial of his

28 U.S.C. § 2254 Petition for Writ of Habeas Corpus challenging his conviction of

first degree murder, possession of a firearm by a felon, and evading an officer.


        *
             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).
Harris contends that his trial counsel provided ineffective assistance by (1) failing

to object to prosecutorial argument that commented on Harris’ failure to testify in

violation of Griffin v. California, 380 U.S. 609, 615 (1965), and (2) misstating the

facts during closing argument. He argues that the California Court of Appeal’s

decision to deny habeas relief on the ineffective assistance of counsel claim was

based on an unreasonable application of Strickland v. Washington, 466 U.S. 668

(1984). We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

      1.     The California Court of Appeal reasonably concluded that the

prosecutor’s comments addressed the failure of defense counsel to introduce

material evidence or call witnesses, and did not call attention to Harris’ failure to

testify. See Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (“[A] prosecutor’s

indirect comment violates Griffin only ‘if it is manifestly intended to call attention

to the defendant’s failure to testify, and is of such a character that the jury would

naturally and necessarily take it to be a comment on the failure to testify.’”

(quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987))); United States v.

Mares, 940 F.2d 455, 461 (9th Cir. 1991) (“The prosecutor may comment on the

defendant’s failure to present exculpatory evidence, provided that the comments do

not call attention to the defendant’s own failure to testify.”); Rhoades v. Henry, 598

F.3d 495, 511 (9th Cir. 2010) (finding that “[a] natural reading of the prosecutor’s


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comment is not that the defendant didn’t testify, but that there was no meaningful

challenge to the government’s evidence”). Accordingly, the California Court of

Appeal concluded that Harris’ defense counsel was not ineffective for failing to

make a Griffin objection. See Juan H. v. Allen, 408 F.3d 1262, 1273–74 (9th Cir.

2005) (finding that “performance of counsel did not fall below an ‘objective

standard of reasonableness’ on account of not raising [a] meritless objection”

(citation omitted)). Its decision was neither objectively unreasonable nor an

unreasonable determination of the facts in light of the evidence presented. See 28

U.S.C. § 2254(d)(1), (d)(2).

      2.     In addition, the California Court of Appeal did not apply Strickland in

an objectively unreasonable manner or rest its decision on an unreasonable

determination of the facts in rejecting Harris’ claim that defense counsel misstated

certain facts in closing argument. See 28 U.S.C. § 2254(d)(1), (d)(2). Defense

counsel’s remarks may reasonably be construed as argument—not objective

summation of the evidence—aimed at casting doubt on the credibility of the

prosecution’s witness and clarifying the defense’s theory of the case. Thus, the

California Court of Appeal reasonably concluded that defense counsel’s closing

remarks did not amount to ineffective assistance. See Harrington v. Richter, 131

S. Ct. 770, 787 (2011) (“A court considering a claim of ineffective assistance must


                                          3
apply a ‘strong presumption’ that counsel’s representation was within the ‘wide

range’ of reasonable professional assistance.” (quoting Strickland, 466 U.S. at

689)); Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (noting that there is a “strong

presumption that [counsel acted] for tactical reasons rather than through sheer

neglect” (citing Strickland, 466 U.S. at 690)).

      AFFIRMED.




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