                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              DEC 18 2015
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER DANIEL BURGESS,                      No. 15-15124

               Petitioner - Appellant,           D.C. No. 2:03-cv-01196-GEB-
                                                 GGH
 v.

D. L. RUNNELS, Warden,                           MEMORANDUM*

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
               Garland E. Burrell, Jr., Senior District Judge, Presiding

                     Argued and Submitted November 17, 2015
                             San Francisco, California

Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.


      Christopher Burgess appeals the denial of his petition for habeas relief under

28 U.S.C. § 2254.1 Burgess’s petition challenges his first-degree murder

conviction on the grounds that it was based on insufficient evidence, that he was


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
          We have jurisdiction under 28 U.S.C. § 2253(c)(1) and 28 U.S.C. § 1291.
prejudiced by prosecutorial misconduct during closing argument, and that he

received ineffective assistance of trial counsel. The district court denied Burgess’s

petition, granting a certificate of appealability (“COA”) on his prosecutorial

misconduct claim only. See 28 U.S.C. § 2253(c)(1)(A). We affirm the district

court’s denial of habeas relief on Burgess’s prosecutorial misconduct claim and

decline to expand the certificate of appealability to encompass his other two

claims.

1.    We review de novo the district court’s denial of Burgess’s section 2254

petition. Hayes v. Ayers, 632 F.3d 500, 507 (9th Cir. 2011) (citing Tilcock v.

Budge, 538 F.3d 1138, 1143 (9th Cir. 2008)). In order to prevail, Burgess must

demonstrate that the Court of Appeal’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal Law.” 28 U.S.C. §

2254(d)(1). He must also demonstrate that the prosecutor’s alleged misconduct

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

due process.” Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). We look to the last

reasoned state court decision to evaluate Burgess’s claims; here, the decision of the

California Court of Appeal. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see

generally Harrington v. Richter, 562 U.S. 586 (2011).

                                           2
2.    During closing rebuttal argument, the prosecutor displayed a photo of the

victim at Christmas, noted that the victim would never experience another

Christmas, and delivered a speech analogizing the opening of Christmas presents to

the medical examiner’s autopsy of the victim’s body. People v. Burgess, No.

C032143, slip op. at 10 n.3 (Cal. Ct. App. Mar. 1, 2001). After the prosecutor

delivered her rebuttal, court adjourned for the day. Id. at 11. The following

morning, defense counsel requested that the court admonish the jury not to

consider the prosecutor’s improper argument. The trial court denied defense

counsel’s request, but it modified its final instruction to admonish the jury to

disregard arguments designed to arouse sympathy, passion, or prejudice. Id.

3.    Even assuming the prosecutor’s “Christmas speech” was an improper appeal

to the jury’s passions and biases, improper argument, by itself, does not violate a

defendant’s constitutional rights. Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir.

1996) (internal citations omitted). As noted, prosecutorial misconduct rises to a

constitutional violation only if it “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” Parker, 132 S. Ct. at 2153; see

also Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Supreme Court has

instructed federal courts to evaluate the alleged misconduct in the context of the

entire proceedings and to consider whether the prosecutor manipulated or misstated

                                           3
evidence; whether her comments implicated other specific rights of the accused;

whether the objectionable content was invited or provoked by defense counsel’s

argument; whether the trial court admonished the jurors; and the weight of the

evidence against the defendant. See Darden, 477 U.S. at 181.

4.    Applying those factors, Burgess has not demonstrated that the prosecutor’s

Christmas Speech rendered his trial “fundamentally unfair” such that his

conviction violates due process. The prosecutor’s comments did not misstate the

evidence or implicate Burgess’s other specific rights. Further, the court modified

its final jury instruction to address defense counsel’s objection. Finally, the trial

evidence of Burgess’s conduct and the victim’s injuries was sufficient to support

conviction beyond a reasonable doubt. Burgess, slip op. at 3–7. Viewing the trial

evidence and drawing all inferences in the light most favorable to the prosecution,

a rational factfinder could have found beyond a reasonable doubt the essential

elements of first-degree murder under a torture-murder theory. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); People v. Streeter, 54 Cal.4th 205, 237–38

(2012) (explaining the prosecutor’s burden of proof for first-degree murder by

torture under California law). In light of the record evidence, Burgess has not

demonstrated that the Christmas Speech so infected the trial that it rendered his

first-degree murder conviction a denial of due process. Parker, 132 S. Ct. at 2153.

                                           4
5.    When a petitioner submits a brief addressing uncertified issues, we may

construe the inclusion of those issues as a request to expand the scope of the COA.

Delgadillo v. Woodford, 527 F.3d 919, 930 (9th Cir. 2008) (internal citation

omitted). In order to expand a COA, the “petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Burgess has not

demonstrated that reasonable jurists would find the district court’s assessment of

his sufficiency of the evidence and ineffective assistance of trial counsel claims

debatable or wrong. Accordingly, we decline to expand the COA.

6.    The judgment of the district court denying Burgess’s habeas petition is

AFFIRMED.




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