                                                                             FILED
                              NOT FOR PUBLICATION                             JUL 27 2012

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




                              FOR THE NINTH CIRCUIT



MIKHIEL JAKOB LEINWEBER,                           No. 09-15593

                Petitioner-Appellant,              D.C. No. 1:07-cv-01429-
                                                   LJO-WMW
    v.
                                                   MEMORANDUM *
TILTON and ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA, Warden,

                Respondents - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Lawrence J. O’Neill, District Judge, Presiding

                         Argued and Submitted April 20, 2012
                              San Francisco, California

Before: NOONAN and MURGUIA, Circuit Judges, and TIMLIN, Senior District
Judge.**

         Petitioner-appellant Mikheil Leinweber appeals the district court’s denial of

his habeas corpus petition filed under 28 U.S.C. § 2254, challenging his jury


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
conviction in California state court for first-degree murder. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

      We review de novo a district court’s denial of a habeas corpus petition and

review for clear error the district court’s factual findings. Ali v. Hickman, 584 F.3d

1174, 1181 (9th Cir. 2009). Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), we may grant habeas relief only if (1) a state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law”; or (2) “was based on an unreasonable determination of

the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). For

AEDPA purposes, we look to the state court’s last reasoned decision, which in this

case is the California Court of Appeal’s opinion affirming Leinweber’s conviction

on direct appeal.

      Leinweber contends that, during his state court trial, the prosecutor

committed three types of prejudicial misconduct and that the state court’s

determination that no misconduct occurred was objectively unreasonable under

Section 2254(d)(2).

      First, Leinweber contends he was denied his right to due process when the

prosecutor misstated the law regarding what constitutes involuntary manslaughter

under California law during closing argument.


                                          2
      The state concedes that the prosecutor misstated the law when he asserted

during closing argument that being a felon in possession of a firearm rendered

Leinweber ineligible for involuntary manslaughter. Improprieties in a prosecutor’s

arguments do not constitute reversible error “unless they are so gross as probably

to prejudice the defendant, and the prejudice has not been neutralized by the trial

judge.” United States v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) (quoting United

States v. Parker, 549 F.2d 1217, 1222 (9th Cir. 1977)). The misstatement of the

law here did not rise to such a level. As noted by the California Court of Appeal,

this was a single, isolated comment in a lengthy closing argument and rebuttal,

which included a number of accurate statements concerning the jury’s ability to use

Leinweber’s possession of a firearm while being a felon as circumstantial evidence

of his state of mind on that day.

      Further, the trial judge instructed the jury correctly on the various theories of

murder and manslaughter. The jury also was instructed that any statement by an

attorney regarding the law inconsistent with the jury instructions was to be

disregarded. Instructions from a judge carry more weight than statements of law

from counsel, and jurors are presumed to follow the jury instructions they are

given. Boyde v. California, 494 U.S. 370, 384-85 (1990); Richardson v. Marsh,

481 U.S. 200, 206 (1987). Based on the foregoing, we hold that the California


                                           3
Court of Appeals’ determination that Leinweber’s trial was not infected with

unfairness because of this misstatement of law was not objectively unreasonable.1

       Second, Leinweber asserts that the prosecutor repeatedly impugned trial

counsel, both during the examination of witnesses and during closing arguments,

and that this amounted to prosecutorial misconduct depriving him of his

constitutional right to a fair trial. He asserts that the prosecutor suggested that

defense counsel had encouraged witnesses during his pretrial interviews with them

to commit perjury by changing their anticipated testimony to be favorable to

Leinweber.

      The California Court of Appeal considered various instances in which the

prosecutor made these statements and found that, “[w]hile several of the comments

made by the prosecutor here could be labeled misconduct, we do not think that the

statements deprived Leinweber of a fair trial nor caused a miscarriage of justice.”

Leinweber argues that the California Court of Appeal’s failure to take into account

other instances during closing argument in which the prosecutor claimed that



      1
        Leinweber also contends his due process rights were violated by the trial
court’s refusal to give a curative jury instruction concerning the misstatement of
law. This contention is outside the scope of the issues certified in the Certificate of
Appealability (“COA”) in this case. As the scope of review in habeas cases under
the AEDPA is limited to the issues specified in the COA, we decline to consider it.
See Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005).

                                            4
Leinweber’s trial counsel suborned perjury by getting witnesses to change their

stories in advance of trial resulted in an objectively unreasonable determination of

the facts, in violation of Section 2254(d)(2). We have reviewed the record and find

that the California Court of Appeal did in fact consider most of the instances cited

by Leinweber, and those not considered were minor instances in which the

prosecutor urged the jury to find the witnesses not credible because they fabricated

their stories.

       However, we also agree with the California Court of Appeal’s holding that

some of the prosecutor’s statements were improper. In particular, the prosecutor’s

statements referencing defense counsel’s dishonorable character, and the

suggestion that defense counsel persuaded witnesses to change their testimony and

acted improperly in failing to record and turn over notes from witness interviews,

were highly improper and deserve our condemnation and opprobrium.

       But “it is not enough that the prosecutors’ remarks were undesirable or even

universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(internal quotation marks omitted). The relevant question is whether the

prosecutor’s comments “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” See id. (quoting Donnelly v.

DeChristoforo, 416 U.S. 637 (1974)). To determine if the comments rendered the


                                          5
trial unfair, we consider factors such as whether a comment misstated the evidence,

whether the court admonished the jury to disregard the comment, whether the

comment was invited by defense counsel in its summation, whether defense

counsel had an adequate opportunity to rebut the comment, the prominence of the

comment in the context of the entire trial and the weight of the evidence. See id. at

182.

       Here, the prosecutor’s comments did not pass by unnoticed. The trial judge

sustained a number of objections by defense counsel, one of which was to

“inferences of improper conduct on the part of [defense counsel].” The court also

took judicial notice of the fact that a defendant and his counsel have no obligation

to turn over any notes, statements or communications between possible prosecution

witnesses and defense counsel. The jury was also instructed that they were not to

be prejudiced for or against a witness, based on the fact that he or she had been

interviewed by an attorney or an investigator, but rather could consider it only for

the credibility of that witness’ testimony. This instruction also explicitly stated

that the personal integrity of the defense counsel, “an officer of the court,” was not

in dispute.

       Also, the record shows that many of the prosecutor’s comments were not

misstatements of the evidence, but rather proper argument attacking the witnesses’


                                           6
credibility for changing their stories after speaking to defense counsel. Further,

defense counsel had an opportunity to rebut the prosecutor’s comments, and he did

so rather extensively in his closing argument.

      Perhaps most importantly, the weight of the evidence against Leinweber was

strong. Witnesses testified that he was agitated and angry before the shooting, that

they saw him with a gun before the shooting, and that he made several comments

that he was going to kill either the victim or the driver of the car. The medical

evidence showed that the victim was shot at very close range.

      Taking into account all the Darden factors, we hold that the California Court

of Appeals’ determination that “any arguable prosecutorial misconduct did not

prejudice Leinweber’s case” was objectively reasonable under Section 2254(d)(2).

See Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam).

      Lastly, Leinweber contends that the prosecutor committed misconduct

through the use of prior bad act evidence to show Leinweber’s propensity to

commit crime and to show criminal disposition generally. He complains of

instances in which the state trial court admitted prior bad act evidence over defense

counsel’s objection, and the prosecutor then referred to the evidence at closing

argument. This contention does not address prosecutorial misconduct, but rather

goes to the state trial court’s admission of that evidence, an issue of state law.


                                            7
Simple errors of state law do not warrant federal habeas relief. Estelle v. McGuire,

502 U.S. 62, 67 (1991).

      Under AEDPA, a state court decision is only contrary to clearly established

Supreme Court precedent if the state court “applies a rule that contradicts the

governing law set forth” in Supreme Court decisions or “confronts a set of facts

that are materially indistinguishable from a [Supreme Court] decision . . . and

nevertheless arrives at a result different from [Supreme Court] precedent.” Mejia v.

Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008) (quoting Williams v. Taylor, 529

U.S. 362, 405-06 (2000)). “Clearly established federal law as determined by the

Supreme Court, refers to the holdings, as opposed to the dicta of [the Supreme

Court’s] decisions as of the time of the relevant state-court decision.” Earp v.

Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005) (quoting Lambert v. Blodgett, 393

F.3d 943, 974 (9th Cir. 2004)) (internal citations and quotation marks omitted).

      Leinweber points to no Supreme Court precedent establishing that admission

of propensity evidence for the purposes it was introduced at trial here is

unconstitutional. “Although the [Supreme] Court has been clear that a writ should

be issued when constitutional errors have rendered the trial fundamentally unfair,

see Williams, 529 U.S. at 375, it has not yet made a clear ruling that admission of

irrelevant or prejudicial evidence constitutes a due process violation sufficient to


                                           8
warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th

Cir. 2009).

      Lacking any Supreme Court authority directly on point, Leineweber relies

on general due process principles to argue that the admission of evidence may

provide a basis for habeas relief if it rendered the trial fundamentally unfair. See

Holley, 568 F.3d at 1101; see also Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.

1995). While certain evidentiary rulings and particularly the admission of

propensity evidence under certain circumstances in a trial may constitute a

violation of due process and result in a fundamentally unfair trial, we conclude that

the admissibility of the prior bad acts evidence against Leinweber, in conjunction

with all the other evidence presented, did not cause the instant trial to have been

fundamentally unfair in violation of his due process rights. The evidence presented

was relevant and was only admitted for limited purposes. The trial court instructed

the jury that such evidence was to be used only to determine intent, absence of

malice, or absence of accident. Therefore, we conclude that the California Court

of Appeals did not act in an objectively unreasonable manner in concluding that

the propensity evidence was constitutionally admissible.

AFFIRMED.




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