                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 23 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRIAN LAMAR BROWN,                               No.   18-15727

              Petitioner-Appellant,              D.C. No.
                                                 2:02-cv-00770-GMN-PAL
 v.

STATE OF NEVADA; RICK WALKER;                    MEMORANDUM*
BILL DONAT,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                          Submitted December 2, 2019**
                            San Francisco, California

Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.




      *
             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).
      ***
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
      Appellant Brian Brown filed a petition for habeas corpus under 28 U.S.C.

§ 2254, alleging that his constitutional rights had been violated during his criminal

trial. The district court denied the habeas petition. We granted a certificate of

appealability on the issue of “whether the prosecutor committed prejudicial

misconduct during closing arguments.” Because the parties are familiar with the

facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 2253,

and we affirm.

      We review the Nevada Supreme Court’s 1999 decision on Brown’s direct

appeal of his conviction because it is the last reasoned state-court decision

addressing the issue at hand. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.

2003). We may not grant habeas relief under these circumstances unless the

Nevada Supreme Court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).

       A prosecutor’s improper comments violate a defendant’s constitutional

rights only if 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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).




                                           2
Any curative instructions given by the trial court and “heavy” evidence of the

defendant’s guilt soften the impact of improper comments. See id. at 182.

       The Nevada Supreme Court found that “the fairness of [Brown’s] trial was

not affected” by the prosecutor’s comments. Although the Nevada Supreme Court

did not cite Darden, the Nevada Supreme Court’s language is nearly identical to

Darden’s standard for a constitutional violation. We thus conclude that the

Nevada Supreme Court found that the prosecutor’s comments did not violate

Brown’s due process rights. As a result, we must decide whether the Nevada

Supreme Court unreasonably applied Darden. It did not.

       Brown argues that his constitutional rights were violated when the

prosecutor (1) asserted that Brown shot the victims in the back, (2) misstated

witness testimony, (3) argued facts not in evidence, and (4) denigrated Brown’s

expert witness. None of these comments “infected the trial with unfairness.” Id. at

181.

1.     Contrary to Brown’s assertion, the prosecutor did not say that Jason Banks

was shot in the back. Instead, the prosecutor argued that Brown did not draw his

gun until the victims’ backs were turned. Although one witness had testified that

the victims were walking towards Brown when he drew the gun, other witnesses

contradicted that testimony. The prosecutor’s argument was thus a fair inference


                                          3
from the testimony elicited at trial. Regardless, any detrimental effect engendered

by these comments was softened by the trial court’s instruction that “[n]othing that

counsel say[s] during the trial is evidence in the case.” Absent a contrary showing,

we presume the jury followed that instruction. See Richardson v. Marsh, 481 U.S.

200, 211 (1987).

2.    Brown contends that the prosecutor misstated the testimony of two

witnesses: Robin Skipworth and Michelle Marlette. Skipworth had testified that

Brown was “between [Banks and Randy Beach] and the car” prior to the shooting,

so they were walking towards Brown when he drew his gun. During his closing

arguments, the prosecutor said that Skipworth had testified that Brown did not

draw his gun until the victims’ backs were turned. This was a misstatement. But it

did not affect the fairness of Brown’s trial. Brown’s counsel immediately objected

to the misstatement. A few moments earlier, the trial court had cautioned the jury,

“Ladies and gentlemen, you decide what you heard.” And throughout closing

argument, Brown’s counsel highlighted the prosecutor’s misstatement and

accurately recounted Skipworth’s testimony.

      The prosecutor did not misstate Marlette’s testimony. Rather, the prosecutor

proffered a hypothetical to highlight an inconsistency between Marlette’s

testimony—that Brown fired all the shots from the basketball court—and the fact


                                          4
that multiple bullet casings were found outside of the basketball court. This did

not violate Brown’s right to due process.

3.    Brown identifies two facts not in evidence that the prosecutor allegedly

argued during closing statements: (1) that the shooting occurred when Brown was

thirty feet away from Banks and Beach, and (2) that the crime investigators found

gun residue on Banks after swabbing the back of his hands. As previously

mentioned, the first was merely a hypothetical proffered by the prosecutor. As for

the second, Brown is correct; no witness testified that Banks was swabbed on the

back of his hands. But Brown fails to show how this comment undermined the

fairness of his trial, especially when Brown’s counsel immediately objected.

4.    Finally, the prosecutor denigrated Brown’s expert witness by saying, “You

saw Dr. Bittker. One might wonder why he’s not ever called by us here. You

know why? We don’t use that man. Ph.D. You’ve heard of that, piled higher and

deeper.” This statement is clearly improper. But Brown’s counsel immediately

objected to it, and the trial court sustained that objection. This softened the impact

of the statement, particularly given the trial court’s earlier instruction to the jury

that it was to “disregard” and “draw no inference from” statements when the court

sustains an objection. In any event, it is unlikely the jury discounted Dr. Bittker’s




                                            5
opinion that Brown acted in self-defense based solely on the prosecutor’s isolated

comment about Dr. Bittker’s education.1

      In sum, the Nevada Supreme Court did not unreasonably apply Darden or

any other clearly established federal law, precluding Brown from habeas relief.

See 28 U.S.C. § 2254(d).

      AFFIRMED.




      1
         Brown also argues that the prosecutor engaged in “reverse vouching” for
the State’s witnesses by attacking Dr. Bittker and that the prosecutor’s suggestion
that the Washoe County District Attorney’s Office never uses Dr. Bittker as a
witness was likely false. But Brown did not present these arguments in his habeas
petition, so they are waived. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.
2001).
                                          6
