                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              APR 22 2015

                                                                           MOLLY C. DWYER, CLERK
KARL TOBEY,                                      No. 13-36214               U.S. COURT OF APPEALS



              Petitioner - Appellant,            D.C. No. 2:12-cv-00440-RAJ

  v.
                                                 MEMORANDUM*
JEFFERY UTTECHT,

              Respondent - Appellee.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                        Argued and Submitted April 6, 2015
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.


       Karl Tobey (“Tobey”) appeals the denial of his habeas petition. After his first

trial ended in a hung jury, Tobey was convicted of two counts of child rape in

Washington state court. He claims that the prosecution improperly bolstered the

testimony of the child witness and misstated the burden of proof during closing




         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
argument, and that these errors had a substantial or injurious effect on the jury’s

verdict. We affirm.

      Tobey’s habeas petition is subject to the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which provides that the state

court’s decision is entitled to deference unless it “(1) resulted in a decision that was

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

law, as determined by the Supreme Court of the United States,” or “(2) resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

      To obtain relief on a claim of prosecutorial misconduct, a habeas petitioner

must do more than show that the remarks were “undesirable or even universally

condemned” but must demonstrate that the comments “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quotation omitted); see also Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (habeas relief warranted if prosecutorial

misconduct had a substantial and injurious effect or influence on the jury’s verdict).

In order to determine whether the comments rendered the trial fundamentally unfair,

it is necessary to examine the entire proceedings and place the prosecutor’s statements

in context. See Greer v. Miller, 483 U.S. 756, 765–66 (1987).


                                           2
I.    Vouching

      The state court’s denial of Tobey’s claim that the prosecutor improperly

bolstered the witness’s credibility in closing argument was not objectively

unreasonable. See Harrington v. Richter, 562 U.S. 86, 98 (2011) (holding that a state

habeas petitioner has the burden of showing there was no reasonable basis for the state

court to deny relief). The allegedly improper statements, when viewed in context, are

permissible argument rather than improper vouching. The focus of the prosecutor’s

comments was always on the jury’s role as factfinder and why it should believe the

child’s testimony, rather than the prosecutor’s opinion of the witness’s veracity.

Moreover, even if improper, the prosecutor’s comments were not overtly flagrant

violations, and Tobey has not borne his burden of demonstrating that these stray

comments had a substantial or injurious effect on the outcome of the trial.

II.   Misstatement of Burden

      A few statements by the prosecutor in the course of a lengthy closing and

rebuttal suggested the jury needed to decide if the child victim was telling the truth or

had “made this all up” or was “evil.” The Washington courts held these were

improper statements of the law and the burden of proof. See State v. Tobey, 138

Wash. App. 1060 (June 4, 2007) (unpubl.) (citing State v. Fleming, 921 P.2d 1076,

1078 (Wash. App. 1996)). The jury, however, was accurately instructed that


                                           3
arguments by counsel were not evidence, that only the court could define the law for

the jury, and that it needed to “have an abiding belief in the truth of the charge” to be

satisfied beyond a reasonable doubt. Moreover, the jury appears to have carefully

weighed the evidence and testimony, convicting on some but not all of the counts

charged. The prosecutor’s statements, though erroneous, were not so obviously

egregious as to undermine the fundamental fairness of the proceeding and have a

substantial impact on the outcome of the trial.1

III.   Uncertified Issues

       Tobey also raises two uncertified issues in his brief, which we construe as a

request to expand the certificate of appealability. Murray v. Schriro, 745 F.3d 984,

1002 (9th Cir. 2014). We deny the request because Tobey has not made a “substantial

showing of the denial of a constitutional right” with respect to his claims for

ineffective assistance of counsel or cumulative error. See 28 U.S.C. § 2253(c)(2).

       AFFIRMED.




       1
         Because we affirm applying the Brecht “substantial and injurious effect”
standard de novo, we need not address whether we should apply additional AEDPA
deference to the state court’s determination that Tobey was not prejudiced by the
prosecutor’s misstatements. Cf. Ayala v. Wong, 756 F.3d 656 (9th Cir. 2014), cert.
granted, Chappell v. Ayala, 135 S. Ct. 401 (2014).
                                           4
