                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROY PORTER,                                     No.    16-35647

                Petitioner-Appellant,           D.C. No. 2:15-cv-01666-RSM

 v.
                                                MEMORANDUM*
PATRICK R. GLEBE,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ricardo S. Martinez, Chief Judge, Presiding

                           Submitted February 9, 2018**
                              Seattle, Washington

Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.

      Roy Porter (“Porter”) appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition challenging his conviction for one count of first-degree

assault and one count of unlawful possession of a firearm. We affirm.

      We have jurisdiction to consider certified habeas claims pursuant to 28


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 1291 and 2253. The district court certified two issues for appeal: first,

whether the prosecutor’s misstatement of an officer’s testimony on bullet trajectory

amounted to prosecutorial misconduct; and second, whether trial counsel’s failure

to object to the prosecutor’s misstatement constituted ineffective assistance of

counsel. We review the district court’s denial of each claim de novo. See

Robertson v. Pichon, 849 F.3d 1173, 1181 (9th Cir. 2017).

1.    Porter’s claim of prosecutorial misconduct is without merit. A “prosecutor’s

improper comments will be held to violate the Constitution only if they ‘so

infected the trial with unfairness as to make the resulting conviction a denial of due

process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986)). Even assuming that the prosecutor’s

misstatement of Officer Wilson’s testimony on the trajectory of the bullet violated

the Constitution, Porter has failed to establish prejudice.

      “[I]t is important as an initial matter to place the remark in context.” Greer

v. Miller, 483 U.S. 756, 766 (1987) (internal quotation marks and alterations

omitted). Although the prosecutor misstated Officer Wilson’s testimony in her

rebuttal to trial counsel’s closing argument, she was also careful to emphasize that

the jury had an obligation to rely on the “actual evidence,” as opposed to the facts

as she recounted them. Furthermore, the trial court instructed the jury to disregard

any attorney’s “remark, statement, or argument” unsupported “by the evidence or


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the law in [the court’s] instructions.” As the district court correctly noted, jury

instructions can cure improper statements made by the prosecution. See Hein v.

Sullivan, 601 F.3d 897, 916 (9th Cir. 2010). Porter has provided “no reason to

believe that the jury in this case was incapable of obeying the curative

instructions.” Greer, 483 U.S. at 766 n.8.

      We note, too, that the evidence was more than capable of supporting the

inference that Porter shot at the victim, Darryl Peterson (“Peterson”).1 Peterson

testified, consistent with his prior statement, that he saw Porter pull out a gun, aim

it in his direction, and pull the trigger. Officer Wilson confirmed that Peterson’s

version of the trajectory was possible. Accordingly, the Washington Supreme

Court Commissioner did not unreasonably apply clearly established law in denying

Porter’s petition for post-conviction relief.

2.    Porter’s claim that trial counsel rendered ineffective assistance by failing to

object to the prosecutor’s misstatement is similarly meritless. Our review of state

court decisions on ineffective assistance of counsel is “doubly deferential.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Washington Supreme

Court Commissioner concluded that Porter had failed to show deficient


1
  We deny Porter’s request to take judicial notice of a Smithsonian article
summarizing scientific research on the likelihood of dodging a bullet at close
range. Our review is “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011).

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performance and prejudice, both of which are required to state a claim of

ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Porter has failed to show that the Commissioner’s conclusions were

“necessarily unreasonable.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

      Trial counsel’s primary theory at trial was that someone else was responsible

for shooting Peterson. Given this approach, trial counsel’s decision not to object to

the prosecutor’s misstatement is understandable. The omission could very well

have been strategic, and under Supreme Court precedent, we must presume that it

was. See Strickland, 466 U.S. at 690; see also United States v. Necoechea, 986

F.2d 1273 (9th Cir. 1993) (concluding that “the failure to object during closing

argument and opening statements is within the wide range of permissible

professional legal conduct.” (internal quotation marks omitted)).

      Porter has also failed to show prejudice. In light of the evidence introduced

at trial by the State, it is not reasonably probable that a single objection would have

altered the trial’s outcome. See Pinholster, 563 U.S. at 198. Accordingly, the

district court correctly concluded that “the Commissioner reasonably concluded

that trial counsel’s failure to object was not prejudicial.”

      AFFIRMED.




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