                           NOT FOR PUBLICATION                           FILED
                                                                       SEPTEMBER 17
                    UNITED STATES COURT OF APPEALS
                                                                           2014

                           FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS




JEFFREY CARL LUNGBERG,
                                                 No. 11-56107
              Petitioner-Appellant,
                                                 D.C. No. 07-01521-GAF-AGR
  vs.
L.E. SCRIBNER, Warden,
                                                 MEMORANDUM*
              Respondent-Appellee.


                  On Appeal from the United States District Court
                       For the Central District of California
                   Gary A. Feess, District Court Judge, Presiding

                      Argued and Submitted August 26, 2014
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and GLEASON,
District Judge.**

        Jeffrey Lungberg was convicted by a jury in the State of California of

various criminal counts arising from his molesting his stepdaughter, Jane Doe.


            * This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

             ** The Honorable Sharon L. Gleason, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.

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Lungberg appealed his conviction to the California Court of Appeal, asserting

various claims, including prosecutorial misconduct at trial and ineffective

assistance of trial counsel (IAC). The Court of Appeal affirmed. The California

Supreme Court summarily denied review.

      Lungberg then filed a habeas petition in federal court. The District Court for

the Central District of California denied relief.      We granted a certificate of

appealability on: (1) whether Lungberg was entitled to relief as a result of the

alleged prosecutorial misconduct; or (2) whether trial counsel was ineffective

because of his failure to object to the alleged prosecutorial misconduct. We affirm.

      We review de novo the district court’s denial of a § 2254 petition. Samayoa

v. Ayers, 649 F.3d 919, 928 (9th Cir. 2011). “On habeas review, constitutional

errors of the ‘trial type,’ including prosecutorial misconduct, warrant relief only if

they ‘had substantial and injurious effect or influence in determining the jury’s

verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993)). As for IAC, where a state court has

evaluated the IAC claim pursuant to Strickland v. Washington, 466 U.S. 668, 687

(1984), “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable.” Harrington v. Richter, 131 S.Ct. 770, 785

(2011).


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      In this appeal, Lungberg asserts three instances of misconduct by the

prosecutor during closing arguments:

      First, Lungberg asserts that the prosecutor misstated the contents of a note

from Lungberg’s wife to Lungberg. The California Court of Appeal agreed that

the prosecutor had misstated the note, but denied Lungberg relief because “[t]here

was substantial evidence against [Lungberg], and it is not reasonably probable that,

had the prosecutor not misstated the evidence, the result of the proceeding would

have been more favorable to the defendant.” We find that even if the misstatement

constituted prosecutorial misconduct, it did not have “a substantial and injurious

effect or influence in determining the jury’s verdict.” Wood, 693 F.3d at 1113;

Brecht, 507 U.S. at 637-38. And with respect to Lungberg’s IAC claim derived

from misstatement of the note, we find the California Court of Appeal’s

application of Strickland was not unreasonable. Harrington, 131 S.Ct. at 785.

      Second, Lungberg asserts that the prosecutor improperly vouched for Jane

Doe’s credibility by suggesting that her religious faith made her more credible.

Specifically, the prosecutor stated Jane Doe “felt like God was important in her

life” and that her beliefs “[c]ompelled her” to disclose the molestation at the time

when she disclosed the molestation, after years of keeping silent. The prosecutor

then argued: “Now I am not saying that people that worship one faith or another


                                         3
are going to be anymore [sic] truthful than anyone else. But I am telling you this

little girl believed [faith] important. Keep that in mind when counsel suggests --

because the only thing he did at this point is suggest she is a liar.” The California

Court of Appeal concluded that in the context of the entire trial and closing

argument, the prosecutor’s statements did not amount to improper vouching

because the prosecutor was responding to defense counsel’s assertion that Jane

Doe had lied about the molestation by explaining that religion had motivated the

timing of her disclosure. We agree. “Vouching consists of placing the prestige of

the government behind a witness through personal assurances of the witness’s

veracity . . . .” United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir. 1999)

(quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).

Although a prosecutor ought not to use a phrase such as, “I am telling you,” here,

that statement immediately followed a discussion of the evidence that

demonstrated that religion was important to Jane Doe, which the California court

found relevant to the timing of her disclosure. Thus, we find that the California

Court of Appeal’s conclusion that the prosecutor did not improperly vouch for Jane

Doe was not “contrary to” and did not “involve[] an unreasonable application of[]

clearly established Federal law, as determined by the Supreme Court of the United




                                         4
States.” 28 U.S.C. § 2254(d)(1). Because this was not prosecutorial misconduct,

trial counsel’s failure to object cannot constitute IAC.

      Third, Lungberg asserts that the prosecutor improperly argued that the jury

should consider the brevity of Lungberg’s testimony at trial. The California Court

of Appeal found nothing improper in the prosecutor’s arguments.            We have

previously held that “it is neither unusual nor improper for a prosecutor to voice

doubt about the veracity of a defendant who has taken the stand.” United States v.

Moreland, 622 F.3d 1147, 1161 (9th Cir. 2010) (quoting United States v. Birges,

723 F.2d 666, 672 (9th Cir. 1984)). The California Court of Appeal’s conclusion

on this topic was not “contrary to” and did not “involve[] 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).     Because this was not

prosecutorial misconduct, trial counsel’s failure to object cannot constitute IAC.

      AFFIRMED.




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