                                                                                FILED
                            NOT FOR PUBLICATION                                 MAR 19 2014

                                                                             MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMAL SMITH,                                      No. 11-57054

              Petitioner - Appellant,             D.C. No. 2:08-cv-08066-PA-RCF

  v.
                                                  MEMORANDUM*
LARRY SMALL, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                             Submitted March 5, 2014**
                                Pasadena, California

Before: BYBEE and IKUTA, Circuit Judges, and ZILLY, Senior District Judge.***

       Jamal Smith appeals the district court’s denial of his petition for a writ of

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
      The California Court of Appeal determined that Smith’s rights under

Miranda v. Arizona, 384 U.S. 436 (1966), were violated when the trial court

admitted Smith’s statement to the police denying knowledge of how his

fingerprints appeared on the duct tape found on the victim’s body. This

determination was not an unreasonable application of Supreme Court precedent.

See Byrd v. Lewis, 566 F.3d 855, 861–62 (9th Cir. 2009). Nevertheless, this

Miranda violation did not “ha[ve] substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(internal quotation marks omitted), in light of the overwhelming evidence of

Smith’s guilt, including the facts that only Smith’s fingerprints were found on the

duct tape that caused the victim’s asphyxiation and that there was evidence that

Smith had left the fingerprints when applying the duct tape. Given the

overwhelming evidence of guilt, the prosecutor’s repetition of Smith’s statement

did not substantially sway the jury’s verdict. Cf. Hurd v. Terhune, 619 F.3d 1080,

1090–91 (9th Cir. 2010). Accordingly, we conclude that the Miranda error was

harmless.

      The California Court of Appeal’s determination that the prosecutor did not

violate Smith’s due process rights when the prosecutor discussed his out-of-court

conversation with the state’s fingerprint expert was not contrary to, or an


                                          2
unreasonable application of Darden v. Wainwright, 477 U.S. 168 (1986). The

prosecutor’s comments “did not manipulate or misstate the evidence” and the trial

court instructed the jury that its “decision was to be made on the basis of the

evidence alone, and that the arguments of counsel were not evidence.” Id. at 182.

Nor was the California Supreme Court’s rejection of Smith’s Confrontation Clause

claim contrary to, or an unreasonable application of clearly established Supreme

Court precedent, because no Supreme Court case holds that a prosecutor’s

introduction of hearsay during closing arguments renders the prosecutor a witness

subject to cross examination. See 28 U.S.C. § 2254(d)(1).

      AFFIRMED.




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