                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 02 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALEXANDER JAVIER JASSO,                          No.   15-17234

              Petitioner-Appellant,              D.C. No. 3:14-cv-00802-JD

 v.
                                                 MEMORANDUM*
GREG LEWIS, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     James Donato, District Judge, Presiding

                       Argued and Submitted March 13, 2018
                            San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,** District Judge.

      California state prisoner Alexander Jasso appeals the district court’s denial

of his habeas petition challenging his conviction for attempted murder. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
      Even assuming that the prosecutor’s reference to California case law in his

closing statement was a constitutional error, the state court of appeal’s

determination that the error was harmless beyond a reasonable doubt was not

contrary to, or an unreasonable application of, Chapman v. California, 386 U.S. 18

(1967). See 28 U.S.C. § 2254(d)(1). The state court reasonably relied on the

strength of the evidence against Jasso, see Arizona v. Fulminante, 499 U.S. 279,

307–08 (1991), which included evidence of Jasso’s gang membership1 and his

perception that Alejandro Múñoz was in a rival gang, that Jasso initiated the

confrontation with Múñoz and pulled out a gun, and that Jasso chambered a round

in the gun. Given that Jasso’s only explanation was that he had fired the gun

accidentally, the state court was not objectively unreasonable in concluding that the

strength of the evidence rendered the prosecutor’s references to California

Supreme Court and Court of Appeal decisions on intent harmless beyond a

reasonable doubt, particularly in light of the trial court’s subsequent clarifying

instructions to the jury on the relevant legal standards for intent.



      1
         Although Jasso contests the strength of the evidence of gang membership
on appeal, we note that the jury found Jasso guilty of gang-benefit enhancements
and gang-related street terrorism, and both the state courts and district court
rejected Jasso’s sufficiency of the evidence challenges to those findings. The
district court and this Court likewise denied a certificate of appealability on those
claims. See 28 U.S.C. § 2253(c)(2).
                                            2
      Nor has Jasso established that the state court’s harmlessness analysis was

based on an unreasonable determination of fact. See 28 U.S.C. § 2254(d)(2). First,

even if the state court incorrectly characterized Jasso’s “self-serving statements”

about where he intended to fight Múñoz, the state court’s decision was not “based

on” a misstatement of fact because the court discounted those statements as being

self-serving. See Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012).

Second, the state court’s statement that Jasso “fired a round with sufficient

accuracy that it penetrated a window” was factually correct, as it was undisputed

that the bullet hit the window. Third, to the extent that the state court made a

factual finding that the evidence showed that Jasso was motivated by gang rivalry,

rather than a dispute between Múñoz and Jasso’s neighbor, an appellate panel

could “reasonably conclude that the finding is supported by the record.” Id.

(quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated in part

on other grounds, Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014)).

Finally, the state court was not “required to address every jot and tittle of proof

suggested to [it], nor . . . ‘make detailed findings addressing all the evidence before

[it].’” Taylor, 366 F.3d at 1001 (quoting Miller-El v. Cockrell, 537 U.S. 322, 347

(2003)). Here, the fact section of the state court’s opinion sets out the very




                                           3
evidence that Jasso contends it omitted, and there is no indication that the state

court did not consider this evidence in its analysis.

      Because Jasso has not shown that the state court’s decision was objectively

unreasonable under 28 U.S.C. § 2254(d)(1) or (d)(2),2 Jasso is not entitled to

habeas relief, and we need not reach the question whether Jasso “can establish that

[the claimed trial errors] resulted in actual prejudice.” Davis v. Ayala, 135 S. Ct.

2187, 2197 (2015) (internal quotation marks omitted) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)).

      AFFIRMED.




      2
        To the extent that Jasso argues that the cumulative effect of additional
alleged prosecutorial errors “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) (citation omitted), we deny the request made in his reply brief to
expand the certificate of appealability, because Jasso has not made a “substantial
showing” that the state court’s decision was contrary to, or an unreasonable
application of Darden. See Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting 28
U.S.C. § 2253(c)(2)).
                                           4
