                                                                       FILED
                           NOT FOR PUBLICATION
                                                                       MAR 20 2015
                    UNITED STATES COURT OF APPEALS
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT

AGUSTIN JESUS NEVAREZ,                          No. 12-16610

             Petitioner - Appellant,            D.C. No. 4:11-cv-00974-PJH
 v.
                                                MEMORANDUM*
HEIDI M. LACKNER, Warden,

            Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                          Submitted November 18, 2014**
                             San Francisco, California

Before: BERZON and RAWLINSON, Circuit Judges, and LYNN, District
Judge.***T




      *
              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 Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
      Agustin Jesus Nevarez appeals the district court’s denial of his habeas

petition, claiming improper closing argument by the government in his criminal

trial. Under the AEDPA, this Court may reverse the district court’s decision and

grant Petitioner relief only if it finds that the California Court of Appeal’s decision

denying his appeal was “contrary to or involved an unreasonable application of,

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

States,” or if it “resulted in a decision that 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)(1) and (2). This Court reviews a district court’s

denial of a writ of habeas corpus de novo. Houston v. Schomig, 533 F.3d 1076,

1079 (9th Cir. 2008). Having done so, we affirm.

      Petitioner was convicted of two counts of forcible rape of two minor girls.

He appealed, and his conviction was affirmed by the California Court of Appeal.

This Court issued a certificate of appealability from the district court’s decision

denying Petitioner’s application for a writ of habeas corpus under 28 U.S.C.

§2254(d) as to one issue: whether the government committed prosecutorial

misconduct during closing argument. During the closing argument, the

government stated that Petitioner began “hook[ing] up” with his wife when she

was only 14 years old, and added, “I don’t know, I don’t know what that tells you


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about his preferences in age of girls.” The government also implied that Petitioner

wanted to have sex with one of the victims because his marriage was in trouble and

he was probably not having sex with his wife. The government had presented

evidence from Petitioner’s wife that their marriage had deteriorated after the birth

of their first child, but there was no direct evidence that Petitioner was not having

sexual relations with his wife. After a jury verdict in favor of the government, the

trial court entered a judgment against Petitioner, who appealed.

      The California Court of Appeal held that the government had committed no

misconduct, but merely made a “fair comment on the evidence.” That holding was

not contrary to, nor was it an unreasonable application of, clearly established

federal law; nor did the California Court of Appeal unreasonably determine the

facts in light of the evidence presented.

      The standard for prosecutorial misconduct is set forth in Darden v.

Wainwright, 477 U.S. 168, 181 (1986). It requires a petitioner claiming a

prosecutor’s comments to be improper to show that they “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Id.

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Applying that

standard, the California Court of Appeal’s conclusions that (1) the government had

drawn permissible inferences from the evidence and (2) even if the prosecutor’s


                                     Page 3 of 4
comments were improper, “they did not infect the trial with unfairness such that

Nevarez’s due process rights were violated,” neither rested on a standard different

from Darden nor unreasonably applied the Darden standard.

      For these reasons, we AFFIRM the district court’s dismissal of Petitioner’s

habeas petition.

      AFFIRMED.




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