                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ERIC ZACHARY ANDERSON,                          No.    15-15471

                Petitioner-Appellant,           D.C. No. 3:11-cv-02636-JST

 v.
                                                MEMORANDUM*
CLARK E. DUCART, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                      Argued and Submitted August 18, 2017
                            San Francisco, California

Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,** District
Judge.

      Eric Anderson appeals a district court order denying his habeas corpus

petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
federal habeas relief may not be granted unless “a state court’s decision on the

merits was ‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by’” the Supreme Court, or “was ‘based on

an unreasonable determination of the facts.’” Woods v. Donald, 135 S. Ct. 1372,

1376 (2015) (quoting 28 U.S.C. § 2254(d)). This standard is “intentionally

difficult to meet” and requires that the state court decision be “objectively

unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376

(citation and quotation marks omitted). Federal habeas relief is not available

“unless each ground supporting the state court decision is examined and found to

be unreasonable under AEDPA.” Wetzel v. Lambert, 565 U.S. 520, 525 (2012)

(emphasis in original).

      Anderson alleges violations of his Sixth Amendment right of confrontation

and his Fourteenth Amendment right to due process because the prosecutor at his

murder trial posed leading questions to a witness who refused to answer and

referenced those questions during closing arguments. The prosecutor’s questions

related to statements that Anderson’s codefendant purportedly made about the

murder. Anderson’s conviction was affirmed on direct appeal. The state appellate

court concluded that the prosecutor’s leading questions were inappropriate, but

held that any error was cured by the trial judge’s instruction to the jury that an

attorney’s statements and questions are not evidence. The court also noted that the


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other evidence of Anderson’s guilt was “more than substantial.”

      The state court did not unreasonably apply clearly established law in finding

that jury instructions cured any error created by the prosecutor’s conduct.

Anderson does not cite any Supreme Court decision compelling the conclusion that

the prosecutor’s conduct “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); see also Parker v. Matthews, 567 U.S. 37, 48 (2012) (explaining

that the lower court erred in setting aside the state court’s conclusion because “the

Darden standard is a very general one, leaving courts more leeway in reaching

outcomes in case-by-case determinations”) (internal quotation omitted).

Additionally, “[t]he assumption that jurors are able to follow the court’s

instructions fully applies when rights guaranteed by the Confrontation Clause are

at issue.” Tennessee v. Street, 471 U.S. 409, 415 n.6 (1985). The judge at

Anderson’s trial instructed jurors several times that questions posed and arguments

made by attorneys are not evidence. This is not a case where the jury was asked to

“perform the overwhelming task of considering [evidence] in determining the guilt

or innocence” of one defendant and “then of ignoring it in determining the guilt or

innocence of any codefendants.” Bruton v. United States, 391 U.S. 123, 131

(1968).

      Moreover, the state appellate and trial courts reasonably determined that the


                                          3                                      15-15471
jury had substantial other evidence of Anderson’s guilt. At trial, the prosecution

presented eyewitness identification testimony, surveillance footage of Anderson

driving the getaway vehicle just 50 minutes before it fled the murder scene,

physical evidence, and multiple witnesses who had told police that either Anderson

or his codefendant confessed the murder to them. Given the weight of the evidence

against him, Anderson has not shown that any constitutional error that may have

occurred at his trial “had substantial and injurious effect or influence in

determining the jury’s verdict,” or that he suffered “actual prejudice.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted). Accordingly,

any error was harmless.

      AFFIRMED.




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