                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 23 2011

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




                            FOR THE NINTH CIRCUIT



JEREMY P. PUCKETT,                                No. 09-15470

              Petitioner - Appellant,             D.C. No. 2:06-cv-01200-RJB

  v.
                                                  MEMORANDUM ***
ROBERT GOWER, Acting Warden *;
KAMALA D. HARRIS,** Attorney
General,

              Respondents - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Robert J. Bryan, Senior District Judge, Presiding

                     Argued and Submitted November 16, 2011
                             San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.



         *
          Robert Gower, Acting Warden, is substituted for his predecessor, Thomas
Felker, pursuant to Fed. R. App. P. 43(c)(2).

        **
         Kamala D. Harris is substituted for her predecessor, Bill Lockyer, as
Attorney General of California, pursuant to Fed. R. App. P. 43(c)(2).

       ***
         This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      Jeremy Puckett (“Puckett”) appeals the denial of his habeas petition challenging

California jury convictions for robbery and special circumstance murder. We affirm,

concluding that the California Court of Appeal’s decisions—(1) that alleged

prosecutorial misconduct in the opening statement did not deprive Puckett of due

process; and (2) that limitations the trial court set on Puckett’s cross-examination of

the prosecution’s key witness Israel Sept (“Sept”) did not violate due process or

Puckett’s Sixth Amendment right to confrontation—constituted objectively reasonable

applications of clearly established Supreme Court precedent.        See 28 U.S.C. §

2254(d).

      Prosecutorial misconduct merits habeas relief only if it “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) (internal quotation marks and citation

omitted). A jury is also presumed to follow a curative instruction unless there is an

“overwhelming probability that [it] will be unable” to do so and “a strong likelihood

that the effect of the evidence would be devastating to the defendant.” Greer v.

Miller, 483 U.S. 756, 767 n.8 (1987) (internal quotation marks and citations omitted).

Here, the prosecutor’s statements regarding the untimely pre-trial death of a potential

witness and the request Sept made to detectives for protection for his family were

prejudicial. However, the trial court’s curative instructions—which both specifically


                                          2
addressed the prejudicial statements at issue and more generally reminded the jury not

to speculate or treat the opening statement as evidence—and its subsequent polling of

jurors demonstrate that any prejudice did not so infect the trial as to deny due process.

      Although preventing a criminal defendant from inquiring at all into an accusing

witness’s bias or credibility may violate his constitutional right to confrontation, see

Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986), trial judges retain “wide latitude

. . . to impose reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679.

Here, the trial court did not “den[y] the jury sufficient information to appraise [Sept’s]

biases and motivations,” see United States v. Jenkins, 884 F.2d 433, 436 (9th Cir.

1989) (internal quotation marks and citation omitted).          Instead, it “reasonably

limit[ed]” cross-examination of Sept to the nature and magnitude of his alleged bias

without allowing Puckett to inquire into the potentially complicated factual context

surrounding that bias—questioning that would at best generate “marginally relevant”

evidence at the likely expense of jury confusion and other concerns. See Van Arsdall,

475 U.S. at 679-80. Furthermore, in an immediately preceding sidebar, the trial court

had warned Puckett’s defense counsel that he would not be able to engage in the

tangential questioning at issue. Thus, Puckett’s secondary argument—that his defense


                                            3
counsel should have been allowed to effectively sidestep the trial court’s advance

warning by first barging into issues he knew he might not be able to develop and then

asserting that fairness required that he be allowed to fully develop those issues—is

unavailing.

      AFFIRMED.




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