                                                                                 FILED
                     UNITED STATES COURT OF APPEALS                              JUN 23 2014

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




JOSEPH ALAN FISCHER,                             No. 12-56105

              Petitioner - Appellant,            D.C. No. 8:09-cv-00126-AG-JEM
                                                 Central District of California,
  v.                                             Santa Ana

EDMUND G. BROWN, Jr.; FRANK X.
CHAVEZ,                                          ORDER

              Respondents - Appellees.


Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.*

       Petitioner’s Petition for Panel Rehearing is GRANTED. The memorandum

disposition filed on June 9, 2014 is AMENDED as follows.

       The first paragraph states:

             Petitioner appeals the district court’s denial of his 28 U.S.C. §
       2254 habeas corpus petition challenging his conviction and sentence
       as cruel and unusual punishment in violation of the Eighth
       Amendment. We have jurisdiction pursuant to 28 U.S.C. § 2253, and
       we affirm.




       *
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
     The first paragraph is deleted in its entirety and replaced with the following

language:

           Petitioner appeals the district court’s denial of his 28 U.S.C. §
     2254 habeas corpus petition challenging his conviction and sentence
     because of prosecutor misconduct resulting in a denial of his rights
     under the Due Process Clause of the Fourteenth Amendment. We
     have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

     IT IS SO ORDERED.
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JUN 23 2014

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

JOSEPH ALAN FISCHER,                             No. 12-56105

              Petitioner - Appellant,            D.C. No. 8:09-cv-00126-AG-JEM

  v.
                                                 AMENDED MEMORANDUM*
EDMUND G. BROWN, Jr.; FRANK X.
CHAVEZ,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                             Submitted June 4, 2014**
                               Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***




        *
             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 Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Petitioner appeals the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition challenging his conviction and sentence because of prosecutor

misconduct resulting in a denial of his rights under the Due Process Clause of the

Fourteenth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm.

      Our review is governed by the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). 28 U.S.C. § 2254. AEDPA restricts federal courts from

granting a writ of habeas corpus to a petitioner in custody after a state court

judgment on the merits unless the petitioner can show that the state court’s last

reasoned adjudication of the petitioner’s federal claim resulted in a decision that

(1) “was contrary to, or involved an unreasonable application of, clearly

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

or (2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). AEDPA

review is “highly deferential.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)

(citation omitted). When considering a habeas petition, we “look through” the

silent state court decision to the last reasoned decision of a lower state court,

applying AEDPA to that decision. See Ylst v. Nunnemaker, 501 U.S. 797, 806

(1991).


                                           2
      Fischer contends that his conviction and 12-year sentence for robbery,

assault with a deadly weapon, and assault with a firearm were unfair because the

prosecutor committed misconduct by: (1) making improper arguments regarding

evidence; (2) commenting on Fischer’s silence under Griffin v. California, 380

U.S. 609 (1965); and (3) misstating the reasonable doubt standard and improperly

shifting the burden of proof.

      The California Court of Appeal, Fourth Appellate District affirmed Fischer’s

conviction and sentence on December 20, 2007. That court found that although the

prosecutor committed inadvertent misconduct in discussing potential DNA

evidence and misstating the reasonable doubt standard, any misconduct was non-

prejudicial because the trial court closely managed the prosecutor and issued

proper instructions to the jury. The Court of Appeal also concluded that no Griffin

violation occurred because California law lets prosecutors point out that material

evidence is not presented by the defense where one would expect it to be available.

See People v. Bradford, 939 P.2d 259 (Cal. 1997). Finally, the Court of Appeal

found no prosecutorial misconduct when the prosecutor referred to the defense’s

arguments as “scare tactics,” noting the leeway both sides are given in closing

arguments and the particular context of the discrete comments. The California




                                          3
Supreme Court denied Fischer’s petition raising the same claims without comment

on March 12, 2008.

      In examining the prosecutor’s alleged misconduct, the “relevant question is

whether the prosecutors’ 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) (internal quotation marks and citation omitted). This a demanding

standard. Even when prosecutorial misconduct occurs, habeas relief will only be

granted if a petitioner can establish that the error “‘had a substantial and injurious

effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507

U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

      We hold that the California Court of Appeal’s decision is not contrary to, or

an unreasonable application of, clearly established Supreme Court precedent. See

28 U.S.C. § 2254(d). First, Fischer’s contention that the prosecutor committed

misconduct under Berger v. United States, 295 U.S. 78 (1935), overruled on other

grounds by Stirone v. United States, 361 U.S. 212 (1960), is misplaced because the

Court of Appeal reasonably concluded that the prosecutor was not “vouching” for

Officer Paqua or disparaging the defense counsel. See Ceja v. Stewart, 97 F.3d

1246, 1253–54 (9th Cir. 1996) (Counsel “are given latitude in the presentation of


                                           4
their closing arguments, and courts must allow the prosecution to strike hard blows

based on the evidence presented and all reasonable inferences therefrom.” (quoting

United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993))).

      Second, the Court of Appeal reasonably concluded that the prosecutor did

not commit misconduct in alluding to evidence not presented by the defense, and

regardless, any potential misconduct was not prejudicial because “the trial court

intervened, sustained objections, told the jury to base their decision on the

evidence, and prevented further argument on this point.” Third, the Court of

Appeal’s interpretation of Griffin is not an unreasonable application of Supreme

Court precedent because “[a] prosecutor may properly comment upon the

defendant’s failure to present exculpatory evidence, so long as it is not phrased to

call attention to the defendant’s own failure to testify.” United States v. Soulard,

730 F.2d 1292, 1306 (9th Cir. 1984).

      Finally, we reject Fischer’s argument that the prosecutor’s misstatement of

the reasonable doubt standard was prejudicial. The United States Supreme Court

has told us that courts may presume that juries abide by instructions. Weeks v.

Angelone, 528 U.S. 225, 234 (2000). Fischer’s claim fails because he presents no

evidence suggesting that the jury departed from the correct reasonable doubt

instructions it received orally and then in writing upon entering deliberations.


                                           5
AFFIRMED.




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