                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVEN JAMES RED,                               No.    16-55934

                Petitioner-Appellant,           D.C. No.
                                                5:15-cv-02028-BRO-KS
 v.

RON RACKLEY, Warden,                            MEMORANDUM*

                Respondent-Appellee.

                  Appeal from the United States District Court
                      for the Central District of California
                Beverly Reid O’Connell, District Judge, Presiding

                            Submitted March 7, 2018**
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,*** Chief
District Judge.

      Petitioner-Appellant Steven James Red appeals the district court’s decision

denying his petition for a writ of habeas corpus. We have jurisdiction pursuant to


      *
             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 Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
28 U.S.C. §§ 1291, 2253. Reviewing de novo, we affirm. See Sanders v. Ratelle,

21 F.3d 1446, 1451 (9th Cir. 1994).

      In his certified claim, Red asserts that the prosecutor’s comments during

closing argument constituted prosecutorial misconduct and violated his due process

right to a fair trial. When a petitioner claims that a prosecutor’s comments during

closing argument amounted to prosecutorial misconduct, it “is not enough that the

prosecutors’ remarks were undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (citation and quotation marks omitted). The

question for the reviewing court is whether the comments “‘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)).

      Several factors are relevant to determining whether the prosecutor’s

comments rendered the trial fundamentally unfair. Darden, 477 U.S. at 181–82.

These factors included whether the prosecutor manipulated or misstated evidence,

whether the statements implicated the accused’s rights (such as the right to remain

silent or to have an attorney), whether the judge gave any curative instructions, and

the overall weight of the evidence against the accused. Id.

      Here, although the prosecutor’s closing argument included passionate and

arguably less than desirable statements, the prosecutor did not misstate the

evidence or implicate Red’s constitutional right to remain silent or to have an


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attorney. Additionally, the trial judge instructed the jury that the attorneys’

statements were not evidence. Finally, the great weight of the eyewitness, physical,

and forensic evidence supported Red’s conviction. In sum, the prosecutor’s

statements did not “so infect[] the trial with unfairness as to make the resulting

conviction a denial of due process,” and Red is not entitled to relief on this ground.

See id.

      Red raises two other claims in his petition for which he has not received a

certificate of appealability. Until a petitioner secures a certificate of appealability

from a circuit justice or judge, the “Court of Appeals may not rule on the merits of

[the] case.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). At the certificate of

appealability stage, the court of appeals should limit its examination to a “threshold

inquiry into the underlying merit[s] of [the] claims,” asking “only if the District

Court’s decision was debatable.” Id. at 774 (second alteration in original) (quoting

Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003)).

      In his first uncertified claim, Red asserts the California Court of Appeals

unreasonably applied the Supreme Court case Montana v. Egelhoff, 518 U.S. 37

(1996) when it upheld Cal. Penal Code § 29.4 as constitutional. Section 29.4

prohibits a jury in California from considering evidence of voluntary intoxication

to “negate the capacity to form any mental states for the crimes charged, including,

but not limited to, purpose, intent, knowledge, premeditation, deliberation, or


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malice aforethought.” Cal. Penal Code § 29.4(a). Section 29.4 admits evidence of

voluntary intoxication only on the issue of “whether or not the defendant actually

formed a required specific intent.” Cal. Penal Code §29.4(b). In a fractured

opinion, the Supreme Court upheld a similar Montana statute as constitutional. See

Egelhoff, 518 U.S. at 39–40, 43, 56. In her deciding concurrence, Justice Ginsburg

distinguished between a rule designed to keep out “relevant, exculpatory evidence”

and a rule redefining the “mental-state element of the offense.” Id. at 56–60.

According to Justice Ginsburg, a rule designed to keep out “relevant, exculpatory

evidence,” offends due process. Id. at 57. If, however, the law merely redefines the

mental-state element of the offense, the “state legislature certainly has the authority

to identify the elements of the offenses it wishes to punish” and may exclude

evidence irrelevant to the crime it has defined without offending due process. Id.

      Contrary to Red’s argument on appeal, Cal. Penal Code § 29.4 “is not

merely an evidentiary prescription,” but rather “embodies a legislative judgment

regarding the circumstances under which individuals may be held criminally

responsible for their actions.” See People v. Timms, 151 Cal. App. 4th 1292, 1300

(Cal. Ct. App. 2007) (holding that the California legislature had a rational basis for

not allowing voluntary intoxication to serve as a defense in an implied malice case)

(citing Egelhoff, 518 U.S. at 57). Therefore, reasonable jurists would not debate the

district court’s decision to deny Red’s claim, and we decline to issue a certificate


                                          4
of appealability on this claim. See 28 U.S.C. § 2253(c)(2) (“A certificate of

appealability may issue under paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional right”).

      In his second uncertified claim, Red asserts that the California Court of

Appeals erred when it determined that Red’s counsel was constitutionally effective

in spite of failing to move to suppress evidence from an unconstitutional blood

draw. Red acknowledges that the trial court would not have granted a motion to

suppress because of controlling state law. “[F]ailure to take a futile action can

never be deficient performance.” Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.

1996). However, Red asserts that counsel should have filed the motion to preserve

the issue for review. Indeed, one year after Red was sentenced, the Supreme Court

decided Missouri v. McNeely. See 569 U.S. 141, 145 (2013) (holding that

metabolization of alcohol does not qualify as per se exigency justifying a

warrantless blood draw in violation of the Fourth Amendment). However, since

McNeely, California Courts have declined to apply McNeely to exclude evidence

retroactively. See People v. Jones, 231 Cal. App. 4th 1257, 1264–65 (Cal. App.

2014). So, Red’s trial counsel’s failure to preserve the objection did not prejudice

Red. Therefore, we decline to issue a certificate of appealability on this claim. See

Strickland v. Washington, 466 U.S. 668, 687 (1984) (to succeed on an ineffective




                                          5
assistance of counsel claim, defendant first must show that counsel’s performance

was deficient and second that the deficient performance prejudiced the defense).

      AFFIRMED.




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