                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EUN SUK JOO,                                     No. 08-55953

             Petitioner - Appellant,             D.C. No. 07-3418-GPS-RNB

  v.
                                                 MEMORANDUM *
MATTHEW CATE,

             Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                         George P. Schiavelli, Presiding

                        Argued and Submitted May 4, 2010
                              Pasadena, California

Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, ** District Judge.

       This is an appeal from a judgment of the United States District Court for the

Central District of California, adopting a recommendation of a United States




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge, Eastern District of New York, sitting by designation.

                                          1
magistrate judge that a petition for a writ of habeas corpus filed by Eun Suk Joo be

denied. Joo was convicted after jury trial of one count of residential burglary in

violation of California Penal Code § 459 and two counts of attempted residential

burglary in violation of California Penal Code § 664, and he was sentenced to a five-

year term of incarceration. After his timely filed petition pursuant to 28 U.S.C. § 2254

was denied, we granted a certificate of appealability limited to the issues we proceed

to address.

                                           I.

      Before trial, the prosecutor sought an in limine ruling on the admission of a

prior similar act that Joo allegedly committed four years earlier in the same

neighborhood in which the alleged burglaries occurred. After listening to a summary

of the proffered evidence, the trial judge reserved judgment on whether the evidence

would be admissible. Prior to opening statements, Joo’s counsel asked that the

prosecutor be prohibited from making mention of the prior bad act evidence in light

of the pending ruling on admissibility. The judge refused to do so. The prosecutor

then described the prior similar act to the jury during his opening statement in a

manner that turned out to be materially inaccurate. Subsequently, the trial judge held

a hearing to determine the admissibility of the prior bad act evidence. After reviewing

the police report and hearing argument from counsel, the judge excluded the evidence



                                           2
because he determined that the prejudicial effect outweighed its probative value.

      Contrary to Joo’s argument, the issue here is not whether the prosecutor

deliberately lied to the jurors about the evidence underlying the criminal act. Because

habeas corpus relief is not granted for the purpose of “disciplining the prosecutor,” the

issue is whether his unsworn and misleading representation was sufficiently

prejudicial to warrant habeas corpus relief. United States v. Hasting, 461 U.S. 499,

509-11 (1983). While Hasting involved a direct appeal applying a harmless beyond

a reasonable doubt standard, the harmless error standard the prosecutor must meet in

habeas corpus proceedings is less stringent. See Brecht v. Abrahamson, 507 U.S. 619,

636-38 (1993). On collateral review, the relevant question is whether the error had

a “substantial and injurious effect or influence in determining the jury’s verdict.” Id.

at 637 (internal quotation marks omitted). Under this standard, habeas petitioners are

not entitled to relief based on trial error “unless they can establish that it resulted in

‘actual prejudice.’” Id.

      Particularly apposite here is United States v. Jones, 592 F.2d 1038 (9th Cir.

1979), in which we held:

             A prosecutor’s misstatement of the evidence does not
             automatically call for reversal. Instead, the court will
             reverse only if there is a serious possibility of prejudice to
             the defendant.

             In the instant case we cannot find a serious danger of

                                            3
             prejudice to Jones. Both the court and the prosecutor
             warned the jury that the prosecutor’s [opening] statements
             were not evidence; we have noted repeatedly that
             cautionary instructions can help neutralize the possible
             prejudicial effects of prosecutorial misstatements.
             Moreover, the prosecutor did not later rely on the
             misstatements. Finally, the Government’s inability to
             produce evidence which it promised the jury would appear
             to harm the Government’s case rather than the defense.

Id. at 1043-44 (internal citations and footnote omitted); see also United States v.

Monks, 774 F.2d 945, 955 (9th Cir. 1985); United States v. Vargas-Rios, 607 F.2d

831, 838 (9th Cir. 1979).

      This holding is sufficient to dispose of Joo’s argument. The prosecutor’s

disputed statement was limited to one paragraph in the opening, and the incident to

which he referred was not mentioned again throughout the remainder of the seven-day

trial. The prejudicial effect of the alleged misconduct was further diminished because

the jury was instructed by the trial judge that “[t]he lawyers are given some latitude

in terms of their impressions to you right now as to what they believe the evidence is

going to show. What you have to do is decide the case based on the evidence you

actually hear from the witness stand and the law I give to you at the end of the trial.”

This instruction, which jurors are presumed to have followed, see Richardson v.

Marsh, 481 U.S. 200, 211 (1987), was reinforced in the judge’s final instructions to

the jury that the statements of the attorneys are not evidence. Moreover, as was true



                                           4
in Jones, 592 F.2d at 1044, the “Government’s inability to produce evidence which

it promised the jury would appear to harm the Government’s case rather than the

defense.”

                                          II.

      Joo’s ineffective assistance of counsel claim concerns the same prior consistent

conduct evidence that was ruled inadmissible by the trial judge. Joo contends that

defense counsel’s failure to move for a mistrial when the evidence was excluded

constituted “deficient performance.” This argument presumably derives from the

warning the trial judge gave the prosecutor that, if the prosecutor mentioned the prior

similar act “and it turns out not to be admissible, it could be something that is so

prejudicial . . . to the defendant . . . that we might be discussing the issue of a

mistrial.”

      Joo’s claim is without merit. First, it is hardly clear from this statement that

there was a reasonable probability that the trial judge would have granted a mistrial.

Moreover, even if we assume that he would have granted such relief, the prejudice

prong of Strickland v. Washington, 466 U.S. 668 (1984), would be met only if the

petitioner was actually entitled to such relief. “[T]he ‘benchmark’ of an ineffective-

assistance claim is the fairness of the adversary proceeding, and . . . in judging

prejudice and the likelihood of a different outcome, ‘[a] defendant has no entitlement



                                          5
to the luck of a lawless decisionmaker.’” Nix v. Whiteside, 475 U.S. 157, 175 (1986).

             “Thus, an analysis focusing solely on mere outcome
             determination, without attention to whether the result of the
             proceeding was fundamentally unfair or unreliable, is
             defective. To set aside a conviction . . . solely because the
             outcome would have been different but for counsel’s error
             may grant the defendant a windfall to which the law does
             not entitle him.”

Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993) (footnote omitted).

      The argument that petitioner was entitled to a mistrial simply involves a

restatement of the argument that he is entitled to have his conviction set aside and

given a new trial because of the prejudice to his right to a fair trial that occurred as a

result of the prosecutor’s opening statement. The conclusion that he was not entitled

to such relief after trial necessarily resolves the issue of whether he was prejudiced by

his attorney’s failure to move for a mistrial prior to verdict.

                                           III.

      Joo argues that the prosecutor also committed misconduct on two separate

occasions during his closing statement: first, when he commented in his closing that

Joo had not informed the police that he was acting under the influence of cocaine at

the time of the burglary when in fact he had, and, second, when he commented in

closing that Joo did not have any cash in his possession when the prosecutor knew that

Joo had ATM and credit cards in his wallet.



                                            6
                                        A.

      In his closing argument, the prosecutor made the following statement:

            But what did the defendant say? We have two statements
            from the man, one to Officer Stone after he arrested him
            and brought him to Devonshire Station, and then one I
            think before that at the hospital with Sergeant Dutta.
            According to the defense, this man was already, I suppose,
            sober by that time. That’s why the officers aren’t seeing
            any indication he’s under the influence of illegal drugs.
            Does he say anything to them to explain his behavior, “hey,
            man, I was coming down from a cocaine high.”

(Emphasis added). This statement drew an objection from Joo’s counsel on the

ground that the prosecutor had successfully objected to the admission of Joo’s third

statement to Detective Anderson, during which Joo stated that he had been on crack

cocaine and that he was coming down from a high. Joo’s counsel contended that the

prosecutor was “able to argue evidence that he sought excluded from the jury to say

it doesn’t exist and wasn’t present[,] . . . [which constitutes] prosecutorial

misconduct.” The objection was overruled.

      In Miller v. Pate, 386 U.S. 1 (1967), the Supreme Court held that the Due

Process Clause was violated by the prosecutor’s summation expressly relying on

evidence he introduced that he knew to be false. In condemning this behavior, the

Supreme Court observed that:

            [m]ore than 30 years ago this Court held that the Fourteenth
            Amendment cannot tolerate a state criminal conviction

                                         7
             obtained by the knowing use of false evidence. There has
             been no deviation from that established principle. There
             can be no retreat from that principle here.

Id. at 7 (internal citations omitted); see also Napue v. Illinois, 360 U.S. 264, 269

(1959); Mooney v. Holohan, 294 U.S. 103, 112-13 (1935).

      This clearly established principle was violated when the prosecutor falsely

represented to the jury that Joo did not make any post-arrest statements to the police

indicating that he was under the influence of cocaine. The prosecutor was not only

essentially testifying as an unsworn witness, he was also testifying falsely.      See

United States v. Kojayan, 8 F.3d 1315, 1322-23 (9th Cir. 1993). Significantly, the

district court denied relief without considering whether the prosecutor’s comment

violated the Due Process Clause. Instead, it concluded that the conduct constituted

harmless error. This is a close case. Nevertheless, under the Brecht v. Abrahamson,

507 U.S. 619 (1993), standard for resolving this issue, the district court was correct.

      The excluded statement, referring to the effect of Joo’s cocaine consumption,

was only first mentioned in the last of four post-arrest statements, given over the

course of two days, one of which was recorded and played to the jury. More

significantly, Joo’s conduct after he was surprised by the victims in each of the three

dwellings is inconsistent with the notion that cocaine had somehow overwhelmed his

ability to engage in rational behavior and that he was hallucinating. When Avila (the



                                          8
first victim) saw Joo at her apartment building, Joo replied that he worked at the

building, which Avila knew to be false. After Avila told Joo that she would call the

police, Joo raised his hand, said that “there was no problem,” and left the area. After

Arellano (the second victim) saw Joo holding her window screen, Joo dropped the

screen and fled. When Nowell (the third victim) observed Joo’s arm through the

window, Joo said “I didn’t do anything. It wasn’t me.” Nowell cursed at Joo, and

after a few moments, Joo “left, but he walked calmly as if he hadn’t been the one.”

Moreover, when he was subsequently confronted by Nowell and his cohorts, Joo

attempted to flee. While Nowell testified that Joo appeared to be under the influence

of drugs and that his conduct was consistent with other individuals he had observed

under the influence of drugs in the area surrounding the apartment complex, Joo’s

conduct appears to reflect a consciousness of guilt rather than hallucinatory behavior

induced by cocaine. Significantly, Joo’s expert witness, the only defense witness who

testified on this issue, acknowledged that individuals under the influence of cocaine

are capable of performing intentional acts.

      In sum, although the prosecutor’s comments were relevant to Joo’s only

defense—whether he was capable of forming the specific intent to commit a felony

after entering the various dwellings—there was substantial other evidence from which

the jury could have found that, while he may have been under the influence of cocaine



                                          9
when he committed the offenses of which he was convicted, he was capable of

forming the specific intent necessary to sustain a conviction for burglary. Under these

circumstances, we cannot say that the prosecutor’s unfortunate summation had the

kind of substantial injurious effect on the verdict that would require habeas corpus

relief. Brecht, 507 U.S. at 636-38.

                                          B.

       During closing argument, the prosecutor made the following statement:

              A person who’s addicted to cocaine, I suppose, as the
              defense would like you to believe, who is coming down and
              is in a drug neighborhood, may very well be desperate to
              get more drugs. And we know that the currency on the
              streets in order to get drugs is cash money and that he
              doesn’t have any cash money on him. So what is he going
              to do with his inhibitions that are lowered? He’s going to
              do something stupid like this in a desperate effort to get
              some sort of property that maybe he can use to get drugs.

The statement drew an objection from Joo’s counsel on the grounds that the

prosecutor was again “arguing the evidence that was sought to be excluded.”

Immediately after the objection, the judge admonished the jury to “decide this case

based on the evidence you receive during the trial and the legal instructions I have

given you.”

      Joo contends that because he had ATM and credit cards in his possession at the

time of the burglaries, evidence of which was excluded from trial, the prosecutor’s



                                          10
statement constituted misconduct. Unlike the comment with respect to Joo’s post-

arrest statements to the police, this statement was not contrary to the evidence.

Indeed, it is undisputed that there was no cash found in Joo’s possession at the time

of his arrest and that “the currency on the streets in order to get drugs is cash money.”

Credit cards are of no use, and the district court found that there was no evidence that

there was cash to be drawn on even if an ATM was readily available at 6:00 to 7:00

in the morning. Joo’s quarrel, if any, is with the ruling excluding evidence indicating

the possibility of access to sources of cash. The district court held that the exclusion

of this evidence did not constitute an “objectively unreasonable application of clearly

established Supreme Court law,” and we declined to issue a certificate of appealability

with respect to that issue.

       While we conclude that habeas corpus relief is unavailable here, we are

concerned with the conduct of the prosecutor. In Berger v. United States, 295 U.S.

78, 88 (1935), the Supreme Court held that a prosecutor is a “representative not of an

ordinary party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it shall win a case, but that justice shall

be done.” The prosecutor in this case engaged in conduct that was inconsistent with

his obligation to ensure that justice was done. Nevertheless, for the reasons stated



                                            11
above, the judgment of the district court is AFFIRMED.




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