Sergio Rodriguez v. B. Cash , 520 F. App'x 586 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO RODRIGUEZ, No. 12-55515
Petitioner - Appellant, D.C. No. 3:11-cv-01216-IEG-WVG
v.
MEMORANDUM*
BRENDA M. CASH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted May 9, 2013**
Pasadena, California
Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
Judge.***
*
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 Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
Sergio Rodriguez appeals the district court’s order dismissing with prejudice
the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
Rodriguez contends that the state court unreasonably applied Griffin v.
California, 380 U.S. 609, 615 (1965), by failing to find error when the prosecutor
made impermissible comments about Rodriguez’s failure to testify at trial. “While
a direct comment about the defendant’s failure to testify always violates Griffin, a
prosecutor’s indirect comment violates Griffin only ‘if it is manifestly intended to
call attention to the defendant’s failure to testify, or is of such a character that the
jury would naturally and necessarily take it to be a comment on the failure to
testify.’” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (quoting Lincoln v.
Sunn, 807 F.2d 805, 809 (9th Cir. 1987)).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) standard, the state court’s conclusion that no error occurred was
neither an unreasonable application of Griffin nor an unreasonable determination
of the facts. See 28 U.S.C. § 2254(d). Although Rodriguez contends the
prosecutor made an indirect reference to his failure to testify, when viewed in
context, the prosecutor was referring to defense counsel’s failure to rebut certain
questions raised about the evidence. A comment on the failure of defense counsel
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to counter or explain the testimony presented or the evidence introduced is not a
Griffin violation, where, as here, it is “not in any manner directed at the
[defendant’s] failure to take the stand.” United States v. Mares, 940 F.2d 455, 461
(9th Cir. 1991); see also United States v. Sarno, 73 F.3d 1470, 1498-99 (9th Cir.
1995); United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995).
AFFIRMED.
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