Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

MEMORANDUM^** 

Anthony Pettaway appeals from the denial of his petition for habeas corpus. He argues that he was denied the effective assistance of counsel and that he was denied due process because of prosecutorial misconduct. We affirm.¹ 

* Pettaway argues that he was denied his sixth amendment right to counsel because his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Pettaway has failed to demonstrate a reasonable probability that, but for counsel's errors, the result would have been different. Pettaway contends, first, that counsel was ineffective because he failed to object to the introduction in evidence of a gun that was not actually used in the robbery. Yet it is unlikely that the jury was confused by the introduction of the gun. The prosecutor's questions made clear that the gun was introduced only for the purpose of showing that the alleged victim, Weeks, could not have mistaken a beer can for a gun. Weeks testified only that the gun was a "similar-looking" weapon, and neither the prosecutor nor the witness suggested that the gun was the actual gun used.

Second, Pettaway contends that counsel was ineffective because he failed to make a timely objection to the introduction of a written statement by Weeks that he was approached by a black man who put a gun in his face. Pettaway could not have been prejudiced because the trial court excluded the statement despite the untimeliness of counsel's objection, and the jury never saw the statement.

Pettaway also contends that counsel should have objected to the use of a van that was similar, but not identical, to the actual van. Because Weeks testified to the different location of the safe in the van, however, the jury could not have been confused on that point. Weeks did not testify as to whether he had room to lie down in the van, but his physical position would not have determined whether he was a hostage or a willing participant in any event.

Finally, Pettaway contends that counsel was ineffective in not cross-examining Weeks after the jury saw the van and before the jury left for the day. Counsel could not have cross-examined Weeks at that time because the prosecutor had not yet completed direct examination.

II

Pettaway also argues that he was denied due process because of prosecutorial misconduct. He contends that the prosecutor engaged in misconduct by improperly suggesting that his girlfriend died of a drug overdose, that he was a heroin user, and that people had been murdered in the area where the robbery took place. For prosecutorial misconduct to constitute a denial of due process, it must render the trial fundamentally unfair. Greer v. Miller, 483 U.S. 756, 765-66, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987).

After the question about Pettaway's girlfriend, the trial court admonished the jury to ignore the remark and admonished the prosecutor not to make such remarks. The court sustained defense counsel's objections to the other questions. The court also instructed the jury not to assume that any suggestions made by counsel's questions are true. The prosecutor's remarks were not so "clearly prejudicial" that the trial court's actions would not have mitigated their effect. See Donnelly v. De Christoforo, 416 U.S. 637, 644, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). In light of the sequence of events in the trial court, the prosecutor's remarks did not constitute a denial of due process. See Greer v. Miller, 483 U.S. at 766.

AFFIRMED.