                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SEAN MICHAEL MIHAJSON,                          No.    17-55202

                Petitioner-Appellant,           D.C. No.
                                                5:15-cv-02598-ODW-AGR
 v.

NEIL MCDOWELL, Warden,                          MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                           Submitted February 4, 2019**
                              Pasadena, California

Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,*** District Judge.

      Sean Michael Mihajson appeals the denial of his habeas corpus petition

challenging his conviction for first-degree murder. We have jurisdiction under



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
28 U.S.C. §§ 1291, 2254. We affirm.

      First, Mihajson argues that the prosecutor committed misconduct during

closing argument by misstating the burden of proof. The California Court of

Appeal (“CCA”) found that Mihajson forfeited this claim when his counsel failed

to timely object and request an admonition. The prosecutorial misconduct claim is

procedurally barred because of the failure to object. See Fairbanks v. Ayers, 650

F.3d 1243, 1256–57 (9th Cir. 2011) (holding that as long as the state court

“explicitly invokes a state procedural bar rule as a separate basis for its decision,”

federal courts cannot reconsider the issue) (quoting Jackson v. Giurbino, 364 F.3d

1002, 1006–07 (9th Cir. 2004)).

      Second, Mihajson contends that his counsel was ineffective in failing to

object to the prosecutor’s misstatements, and that the CCA’s finding that this error

was non-prejudicial was an unreasonable application of clearly established law.

See 28 U.S.C. § 2254(d)(1). To prove ineffective assistance of counsel, Mihajson

must show that (1) counsel’s behavior was objectively unreasonable, and (2) “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

688, 694 (1984). The CCA acknowledged that the prosecutor misstated the burden

of proof in urging the jury that a reasonable doubt must be connected to some

affirmative evidence in the record, but found the error harmless. The trial court not


                                           2
only properly instructed the jury on the reasonable doubt standard, it also

instructed the jury to follow the court’s instructions if they conflicted with

counsel’s statements. Further, as the CCA discussed, the circumstantial evidence

showing that Mihajson planned to and murdered the victim was compelling.

Mihajson’s sister told friends that Mihajson was setting up a drug deal to rob the

victim; cell phone records placed the victim near Mihajson’s condo on the day of

the purported drug deal; Mihajson was found in possession of roughly the same

amount of money that the victim had earlier withdrawn from two banks; Mihajson

asked his sister to buy plastic sheeting and duct tape the day of the killing, and he

later gave her money to go shopping while he cleaned up the condo; Mihajson’s

sister told her friend that same day that the victim was “no more” and “gone”;

Mihajson’s condo was remodeled extensively after the victim’s disappearance,

including new carpeting, paint, and curtains; and Mihajson fled the area and stayed

at various hotels before relocating to Las Vegas. Therefore, the CCA’s conclusion

that this error was non-prejudicial is a reasonable application of clearly established

law.

       Third, Mihajson argued that the trial court erred in admitting the testimony

of Cynthia Garcia, the victim’s partner. Garcia testified that the victim told Garcia

that she was with Mihajson on the day of the murder. The CCA reasonably found

that the trial court erred, but that the error did not require reversal. Independent


                                           3
evidence placed the victim with Mihajson, including their cell phones triggering

the same tower within eight minutes of one another and bank withdrawals

consistent with the victim pursuing the purported drug deal alone. Therefore,

Mihajson was not prejudiced by the erroneous admission given the strong

circumstantial evidence.

      Fourth, Mihajson contends that the trial court erred in admitting the

testimony of Karen Reyes, a friend of Mihajson’s sister. Reyes testified that she

believed the victim was dead and that Mihajson killed her. The CCA reasonably

concluded that the trial court erred, but found that error harmless in light of the

“strong evidence of Mihajson’s guilt.”

      Finally, Mihajson raises a claim of cumulative error premised on all four of

his above arguments taken together. For the same reasons explained above, the

CCA reasonably rejected this claim.

      In sum, because the CCA reasonably applied clearly established Supreme

Court law, we therefore defer to that decision under the Antiterrorism and

Effective Death Penalty Act of 1996.

      AFFIRMED.




                                           4
