Joe Armstead v. Dwight Neven , 460 F. App'x 728 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOE KELLY ARMSTEAD, No. 10-16324
Petitioner - Appellant, D.C. No. 2:07-cv-01337-LRH
v.
MEMORANDUM *
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted August 29, 2011
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and WRIGHT, District
Judge.**
Joe Kelly Armstead, a Nevada state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
pursuant to 28 U.S.C. § 2253. We review a district court’s denial of a habeas
petition de novo and its factual findings for clear error. Stanley v. Cullen, 633 F.3d
852, 859 (9th Cir. 2011).
Federal habeas relief is warranted only if the state court’s decision “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 in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The standard of review is “highly
deferential . . . [and] demands that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Armstead first argues that he was denied his due process right to a fair trial
because of alleged prosecutorial misconduct, which he maintains portrayed him as
a drug dealer and supplied a motive for murder. He contends this inference had a
substantial and injurious effect on the jury’s verdict. The relevant inquiry is
“whether the prosecutor[’s] comments ‘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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Neither the testimony elicited by the prosecutor nor the remarks during
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closing argument infected the trial with unfairness rendering Armstead’s
conviction a denial of due process. There was no direct evidence that Armstead
was a drug dealer, that he was selling or dealing drugs with Leal, or that the money
Armstead allegedly demanded from Leal just prior to the shooting was from a drug
transaction. Viewed against the backdrop of the overwhelming evidence against
Armstead, including that he entered the trailer, engaged in a struggle with Leal,
told Leal he wanted his money, possessed a gun, and shot Leal during the struggle,
any alleged misconduct could have had only a slight effect on the jury, if at all.
Thus, the denial of Armstead’s petition for a writ of habeas corpus on this ground
“was [not] contrary to, [n]or [did it] involve[] an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,” nor “was
[it] 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)-(2).
Similarly, even assuming that the Nevada State Supreme Court improperly
placed the burden of proof on Armstead to show that the alleged prosecutorial
misconduct was prejudicial beyond a reasonable doubt, conducting an independent
harmless error analysis we conclude that it was not likely that the alleged
prosecutorial misconduct “had a substantial and injurious impact on the verdict.”
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Taylor v. Maddox, 366 F.3d 992, 1016-17 (9th Cir. 2004); see also Brecht v.
Abrahamson, 507 U.S. 619 (1993).
Armstead also argues that the state trial court’s denial of his motion for a
new trial was an abuse of discretion because the alleged prosecutorial misconduct
allowed the jury to improperly reach its verdict. The relevant inquiry is whether
the decision of the trial court to deny the motion for a mistrial made the trial
fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 67-68, 75 (1991). For
the reasons discussed above, we answer that question in the negative.
AFFIRMED.
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