Clarke v. Almager, No. 4:2008cv02890 - Document 11 (N.D. Cal. 2010)
Court Description: ORDER DENYING re 1 Petition for Writ of Habeas Corpus filed by Kevin E. Clarke. Signed by Judge Claudia Wilken on July 22, 2010. (cwlc1, COURT STAFF) (Filed on 7/22/2010)
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Clarke v. Almager Doc. 11 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California 10 11 KEVIN E. CLARKE, No. 08-02890 CW 12 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 13 v. 14 VICTOR M. ALMAGER, Warden, 15 Respondent. 16 / 17 18 19 On June 9, 2008, Petitioner Kevin E. Clarke, a state prisoner 20 incarcerated at Centinela State Prison, filed a petition for a writ 21 of habeas corpus claiming ineffective assistance of counsel. 22 April 17, 2009, Respondent filed an answer. 23 filed a traverse. 24 parties, the Court DENIES the petition. 25 BACKGROUND 26 On Petitioner has not Having considered all of the papers filed by the The following is a summary of the facts taken from the March 27 22, 2007 state appellate court’s unpublished opinion on direct 28 appeal. Resp’s Ex. B, People v. Clarke, A112245 (Cal. App. Ct. Dockets.Justia.com 1 United States District Court For the Northern District of California 2 March 22, 2007). On April 10, 2003, at about 7 p.m., Kenneth Hamel was shot to 3 death in his apartment. 4 seventy-one, was sitting on her couch in her apartment next door to 5 Hamel, when she was shot by a bullet that came through the wall 6 separating her apartment from Hamel’s. 7 investigators found an unfired 9 millimeter round of ammunition on 8 Hamel’s apartment floor, and a bullet hole in the wall adjacent to 9 Williams’ apartment. On the same evening, Katie Williams, age At the crime scene, They also found 271 grams of marijuana, 10 fifty-three grams of cocaine, a scale, other drug paraphernalia and 11 several thousand dollars in cash. 12 behind the couch. 13 with four bullets. 14 gunshot wound to the abdomen. 15 A 9 millimeter handgun was found An autopsy revealed that Hamel had been shot Williams sustained a single, potentially lethal Petitioner was a friend of Erika Geilfuss and William Mines, 16 who lived together in American Canyon, California. 17 introduced them to his friend, Brian Parker, who had recently been 18 released from prison after serving a term for manslaughter. 19 Petitioner had On the evening of April 10, 2003, Petitioner and Parker 20 arrived at Geilfuss’ house. 21 that “everything went bad” during a robbery, and “they had to . . . 22 kill somebody.” 23 Parker planned a robbery, and that Parker had shot the intended 24 target several times when the man produced a gun. 25 had gotten jammed. 26 collect about $90,000, but instead only collected twenty seven 27 dollars. 28 Petitioner had a gun and told Geilfuss Petitioner explained to Geilfuss that he and Petitioner’s gun Petitioner said that they had expected to 2 1 2 suspicious that the murder weapon was buried there. 3 Detective Craig Denton who supervised the recovery of a .357 4 handgun from Geilfuss’ backyard. She contacted 5 At Parker’s request, Mines had buried the .357 handgun, which 6 he was told was the murder weapon, in the backyard of the house he 7 shared with Geilfuss. 8 safe in the house. 9 United States District Court For the Northern District of California Geilfuss later saw a “new hole” in her backyard and became Mines hid Petitioner’s 9 millimeter gun in a After retrieving the gun from the backyard, the police 10 contacted Mines. 11 promised no prison time in exchange for entering a no contest plea 12 to the charge of accessory after the fact of a murder, for burying 13 the gun in the backyard, and for his full and truthful cooperation 14 in subsequent prosecutions. 15 days before April 10, 2003, Parker and Petitioner had asked him to 16 participate in a robbery of a drug dealer. 17 they would be armed, and that he should bring a shotgun. 18 agreed to participate, but Parker decided he did not know him well 19 enough to include him. 20 Mines negotiated a plea agreement in which he was Thereafter, Mines admitted that, a few They told Mines that Mines Geilfuss, Mines and another witness testified that Petitioner 21 appeared to be under the influence of heroin and alcohol on the 22 night of April 10, 2003. 23 On June 30, 2003, after Petitioner was arrested, he gave a 24 videotaped interview that was later played for the jury. 25 Petitioner admitted to agreeing to help Parker rob a drug dealer. 26 On the morning of April 10, 2003, Petitioner drove Parker to Palo 27 Alto in Parker’s car to collect money from certain people. 28 3 They United States District Court For the Northern District of California 1 stopped at five to eight places. 2 the apartment of James Miller, where they obtained two guns: a 3 revolver and a 9 millimeter. 4 apartment, Parker put on a ski mask and took out the revolver. 5 Petitioner had the 9 millimeter. 6 Parker started firing the gun soon after entering the apartment, 7 when he saw that Hamel had a gun. 8 the apartment ran into the kitchen. 9 pulled out the 9 millimeter and found a bullet sticking out of it. Their second to last stop was at When they arrived at Hamel’s Petitioner knocked on the door. A second man who was present in Petitioner was scared. He 10 He racked the gun, and the bullet fell out. 11 shot, Petitioner put the gun back into his waistband and left the 12 apartment. 13 apartment soon after Petitioner. 14 happened as “a robbery gone bad.” 15 After hearing a third Parker was still firing, but must have left the Petitioner described what At his trial, Petitioner’s testimony differed from the 16 statements he had made in his interview with the police. 17 testified that he was “coming down off of heroin” when he gave the 18 taped statement to the police. 19 10, 2003, Parker asked him to help collect money from various 20 people. 21 robbery. 22 entered Hamel’s apartment intending to kill Hamel and had “no idea” 23 why Parker took him along. 24 He Petitioner testified that, on April Parker never told Petitioner that he intended to commit a Petitioner testified that he suspected that Parker Petitioner testified that he had never fired a gun before 25 April 10, 2003, and was not familiar with how to operate one, 26 although, when Petitioner and Parker stopped at Miller’s apartment, 27 Miller gave Petitioner the 9 millimeter and told him it was ready 28 4 1 for firing. 2 he and Parker were going to Hamel’s apartment to collect money, and 3 was too high to consider why he would need a gun. United States District Court For the Northern District of California 4 After they left Miller’s apartment, Petitioner thought When they arrived at Hamel’s apartment, Petitioner knocked on 5 the door, and Parker put on a mask and began firing as soon as he 6 entered. 7 kitchen counter. 8 see drugs or money. 9 was in his waistband to “protect” himself, and saw a cartridge Petitioner entered the apartment and crouched down at the He saw another person in the kitchen, but did not Petitioner pulled out the 9 millimeter that 10 “stuck in it.” 11 never intended to shoot anyone and did not attempt to shoot the 12 weapon after freeing the stuck bullet. He caused the stuck cartridge to fall out. He 13 Petitioner denied telling Geilfuss or anyone else that he had 14 taken money from Hamel’s apartment or that a robbery had gone bad. 15 He testified that he told the police that during his June 30, 2003 16 interview because he believed that was what they wanted to hear. 17 Petitioner really believed that Parker had been hired to murder 18 Hamel. 19 On October 3, 2005, a jury found Petitioner guilty of murder 20 with the special circumstance of committing murder while engaged in 21 the commission or attempted commission of robbery and burglary. 22 The jury also found Petitioner guilty of attempted robbery, 23 burglary, shooting a firearm at an inhabited dwelling, assault with 24 a firearm, and firearm possession by a felon. 25 that Petitioner was armed in connection with all offenses, (except 26 the firearm possession offense, because an element of that offense 27 is being armed), that he had previously been convicted of a serious 28 5 The jury found true 1 felony and that he had served a prison term. 2 sentenced Petitioner to life without the possibility of parole plus 3 fourteen years. 4 Petitioner appealed on the ground of ineffective assistance of 5 counsel. 6 of appeal modified the judgment by striking a one-year enhancement, 7 and otherwise affirmed the judgment. 8 California Supreme Court denied review. On March 22, 2007, in an unpublished decision, the court 9 10 United States District Court For the Northern District of California The trial court On June 13, 2007, the LEGAL STANDARD A federal court may entertain a habeas petition from a state 11 prisoner "only on the ground that he is in custody in violation of 12 the Constitution or laws or treaties of the United States." 13 U.S.C. § 2254(a). 14 Penalty Act (AEDPA), a district court may not grant a petition 15 challenging a state conviction or sentence on the basis of a claim 16 that was reviewed on the merits in state court unless the state 17 court’s adjudication of the claim: "(1) resulted in a decision that 18 was contrary to, or involved an unreasonable application of, 19 clearly established federal law, as determined by the Supreme Court 20 of the United States; or (2) resulted in a decision that was based 21 on an unreasonable determination of the facts in light of the 22 evidence presented in the State court proceeding." 23 § 2254(d). 24 law if it fails to apply the correct controlling authority, or if 25 it applies the controlling authority to a case involving facts 26 materially indistinguishable from those in a controlling case, but 27 nonetheless reaches a different result. 28 28 Under the Antiterrorism and Effective Death 28 U.S.C. A decision is contrary to clearly established federal 6 Clark v. Murphy, 331 F.3d 1 1062, 1067 (9th. Cir. 2003). 2 application of federal law if the state court identifies the 3 correct legal principle but unreasonably applies it to the facts of 4 the prisoner’s case. 5 Id. The only definitive source of clearly established federal law 6 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 7 of the time of the relevant state court decision. 8 Taylor, 529 U.S. 362, 412 (2000). 9 United States District Court For the Northern District of California A decision is an unreasonable Williams v. To determine whether the state court’s decision is contrary 10 to, or involved an unreasonable application of, clearly established 11 law, a federal court looks to the decision of the highest state 12 court that addressed the merits of a petitioner’s claim in a 13 reasoned decision. 14 Cir. 2000). 15 the merits of Petitioner's claim is the California appellate court 16 on direct review. 17 18 LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th In the present case, the only state court to address DISCUSSION Petitioner claims he received ineffective assistance of 19 counsel because (1) his counsel failed to respond to the 20 prosecutor’s statements in closing argument that Petitioner fired 21 the bullet that went through the wall and hit Ms. Williams; and 22 (2) his counsel failed to object on grounds of prosecutorial 23 misconduct to other statements in the prosecutor’s closing 24 argument. 25 A claim of ineffective assistance of counsel is cognizable as 26 a claim of denial of the Sixth Amendment right to counsel, which 27 guarantees not only assistance, but effective assistance of 28 7 1 counsel. 2 benchmark for judging any claim of ineffectiveness must be whether 3 counsel's conduct so undermined the proper functioning of the 4 adversarial process that the trial cannot be relied upon as having 5 produced a just result. United States District Court For the Northern District of California 6 Strickland v. Washington, 466 U.S. 668, 686 (1984). The Id. To prevail under Strickland, a petitioner must pass a two- 7 prong test. 8 performance was deficient in a way that falls below an objectively 9 reasonable standard. First, the petitioner must show that counsel's Id. at 687-88. Second, the petitioner must 10 show that the deficiency prejudiced him. 11 prong of Strickland requires a showing that counsel made errors so 12 serious that counsel was not functioning as the "counsel" 13 guaranteed by the Sixth Amendment. 14 counsel's performance must be highly deferential, and a court must 15 indulge a strong presumption that counsel's conduct falls within 16 the wide range of reasonable professional assistance. 17 Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001). 18 difference of opinion as to trial tactics does not constitute 19 denial of effective assistance, United States v. Mayo, 646 F.2d 20 369, 375 (9th Cir. 1981), and tactical decisions are not 21 ineffective assistance simply because in retrospect better tactics 22 are known to have been available. 23 1241 (9th Cir. 1984). 24 deference when: (1) counsel in fact bases trial conduct on 25 strategic considerations; (2) counsel makes an informed decision 26 based upon investigation; and (3) the decision appears reasonable 27 under the circumstances. 28 Id. Id. at 687. The first Judicial scrutiny of Id. at 689; A Bashor v. Risley, 730 F.2d 1228, Tactical decisions of trial counsel deserve Sanders v. Ratelle, 21 F.3d 1446, 1456 8 United States District Court For the Northern District of California 1 (9th Cir. 1994). 2 Under Strickland’s second prong, the petitioner must show that 3 counsel's errors were so serious as to deprive him of a fair trial, 4 a trial whose result is reliable. 5 The test for prejudice is not outcome-determinative, i.e., the 6 petitioner need not show that the deficient conduct more likely 7 than not altered the outcome of the case; however, a simple showing 8 that the defense was impaired is also not sufficient. 9 The petitioner must show that there is a reasonable probability 10 that, but for counsel's unprofessional errors, the result of the 11 proceeding would have been different; a reasonable probability is a 12 probability sufficient to undermine confidence in the outcome. 13 at 694. 14 ineffective assistance of counsel claim to address the prejudice 15 prong of the Strickland test if the petitioner cannot even 16 establish incompetence under the first prong. 17 Calderon, 133 F.3d 732, 737 (9th Cir.), cert. denied, 525 U.S. 839 18 (1998). 19 I. Prosecutor’s Argument that Petitioner Shot Ms. Williams Strickland, 466 U.S. at 688. Id. at 693. It is unnecessary for a federal court considering an Siripongs v. 20 A. State Court Opinion 21 The state appellate court addressed this issue as follows. 22 27 Near the beginning of his closing argument, the prosecutor stated: “This Defendant is charged with that which he admitted on the videotape and told the other folks. He is not charged with firing a bullet into the body of Mr. Hamel. He is not charged with firing a gun at all. He is not charged with having a gun that works, although I believe that -- I will argue to you that the evidence shows that his participation included having a gun that works. And I would suggest to you that the evidence shows that he was the one that put the bullet in poor Ms. Williams, minding her own business next door. 28 9 23 24 25 26 Id. 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 But regardless of that, in order to decide these charges, those are not things you have to decide. Those are not things that you have to decide.” Later, the prosecutor stated: “Who put the bullet through the wall into Katie Williams, the Defendant did. Of course the Defendant did. Of course the Defendant did, that’s how he his [sic] jammed. That’s how his gun jammed.” In arguing ineffective assistance of counsel, appellant suggests the prosecutor’s statements were contrary to the undisputed evidence that he did not shoot Ms. Williams. He points to his own testimony and statements to the police and to his friends . . . that he never fired the 9 millimeter and that the gun was inoperable. He also points out he was not charged with personally inflicting great bodily injury upon Ms. Williams, or with firearm use enhancements; rather, he was charged with firearm arming enhancements. [Emphasis in original]. 11 12 13 14 15 16 17 18 19 20 21 22 We agree appellant’s trial counsel failed to directly address in closing argument the prosecutor’s suggestion that the evidence was consistent with appellant firing the shot that hit Ms. Williams. Nonetheless, appellant’s trial counsel did strongly argue to the jury the defense’s theory of the case - - that Hamel’s murder was not a “robbery gone bad” but a murder-for-hire by Parker of which appellant was unaware. Consistent with that theory, appellant’s trial counsel directed the jury to evidence that, among other things, Parker received two guns from Miller just before going to Hamel’s apartment, their last stop of the day; that Parker began shooting as soon as he entered Hamel’s apartment; that another person present at Hamel’s apartment was left unharmed; and that drugs and money in plain view in Hamel’s apartment were not taken. Appellant’s trial counsel also pointed out that appellant was inexperienced with guns, and was “loaded” on drugs and alcohol, incapable of forming the requisite specific intent to commit robbery or burglary, on the night of the crime. He suggested that appellant told police it was a “robbery gone bad” only because he hoped to get a sweetheart deal from police and because he feared Parker. 23 27 We conclude that considered as a whole, appellant’s trial counsel’s argument was adequate. While perhaps his argument would have been more effective had he responded to the prosecutor’s belated claim that appellant may have shot Ms. Williams, it was not rendered ineffective by omission. Moreover, while we can only speculate on this record why counsel failed to respond to the argument, we cannot conclude his failure had no rational tactical 28 10 24 25 26 1 2 3 purpose as the law requires. For example, counsel may have preferred to focus on what he deemed the more critical issue in the case -- appellant’s lack of intent to commit robbery or burglary –- rather than to engage in a point-by-point rebuttal to the prosecutor’s argument. . . . 4 5 6 Even were we to conclude, however, that appellant’s trial counsel unreasonably failed to respond to the prosecutor’s suggestion that appellant may have shot Ms. Williams, we would find no resulting prejudice to appellant. 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 Under the law of felony murder, the jury could have found appellant guilty of aiding and abetting regardless of whether he fired the bullet that hit Ms. Williams. As the trial court correctly instructed the jury: “If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of burglary and/or robbery, all persons who either directly and actively commit the act constituting that crime or who with knowledge of the unlawful purpose of the perpetrator of the crime, and with the intent or purpose of committing, encouraging or facilitating the commission of the offense, aid, promote, encourage or instigate by act or advice its commission are guilty of murder of the first degree whether the killing is unintentional or accidental.” 15 16 17 18 19 20 21 22 23 24 25 26 Consistent with that instruction, the prosecutor later explained to the jury: “Robbery, burglary, once those crimes have been found or either one of them, then the death that occurred inside is necessarily a murder of the first degree, as to Mr. Clarke whether he pulled a trigger or not. Whether he pulled a trigger or not.” The evidence supported the commission or attempted commission of those crimes. Testimony from several witnesses, including Ms. Geilfuss, Mr. Mines, and Ms. Martin, corroborated appellant’s statements to police that he was engaged in a “robbery gone bad” that had been planned prior to April 10, 2003. Moreover, appellant’s own testimony proved he knocked on Mr. Hamel’s door, armed with a gun and in the voluntary company of Parker, a convicted murderer who was armed and wearing a mask. Given that evidence, there was no “reasonable probability” that but for trial counsel’s failure to address the issue of who shot Ms. Williams in closing argument, appellant would have received a more favorable result. Resp’s Ex. B, People v. Clarke, A112245 at 9-12. 27 28 11 United States District Court For the Northern District of California 1 B. Analysis 2 As indicated above, under Strickland, for an attorney’s 3 performance to be deficient, he must have made errors that were so 4 serious as to undermine the proper functioning of the adversarial 5 process such that the result of the proceeding cannot be relied 6 upon. 7 reasonably concluded that, even though counsel failed to respond to 8 the prosecutor’s suggestion that Petitioner shot Ms. Williams, his 9 argument was adequate. The appellate court properly applied this principle and Furthermore, as the appellate court 10 suggested, counsel may have tactically omitted this issue so that 11 he could spend more time focusing on the critical defense issue of 12 Petitioner’s lack of intent to commit a robbery or burglary. 13 The state court also properly applied Strickland’s prejudice 14 prong. 15 provides that, once an individual decides to participate in a crime 16 such as robbery or burglary, he is responsible for any murder that 17 occurs within the course of that crime. 18 pointed out, the evidence supported the finding that Petitioner 19 intended to commit or to aid and abet the commission of the 20 burglary or robbery of Hamel. 21 Williams was not relevant to whether the jury found that Petitioner 22 was guilty of the murder of Hamel. 23 reasonably concluded that there was no reasonable probability that, 24 but for trial counsel’s failure, in his closing argument, to 25 address the issue of who shot Ms. Williams, Petitioner would have 26 received a more favorable result. The jury was instructed on the law of felony murder, which As the appellate court Thus, whether Petitioner shot Ms. Therefore, the appellate court 27 The appellate court’s denial of this claim of ineffective 28 12 1 assistance of counsel was not contrary to or an unreasonable 2 application of established Supreme Court authority. 3 II. Failure to Object to Prosecutor’s Alleged Misconduct 4 A. State Court Opinion 5 The state appellate court addressed this issue as follows. 6 Appellant contends his trial counsel further rendered ineffective assistance by failing to object on proper grounds to the following statement by the prosecutor in closing argument: “I talk a lot about the fact that you took an oath, that’s the law, you got to follow it. I respectfully hope and fervently hope that no one would be tempted to disregard it. But consider this, we just, we can’t have this kind of behavior. We just can’t. You can’t live in a society where some very nice 71-year old lady is sitting on her couch and catches a bullet because these people choose to behave in this fashion. We cannot have a society where someone like Mr. Hamel, whatever you think and the fact that he might have been selling marijuana, he’s shot to death in his own home for money, for stupidity. We just can’t tolerate this behavior, and the law is very, very, very, very clear as to how the jury are [sic] to treat it.” 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 Following the prosecutor’s statement, appellant’s trial counsel interrupted with this objection: “Your Honor, this is not rebuttal anymore.” The trial court overruled his objection. Appellant argues his trial counsel was deficient in failing to object to the statement on grounds of prosecutorial misconduct. He reasons that the prosecutor, by “insert[ing] a ‘but,’ before launching into his diatribe concerning what ‘we can’t have’ in our society,” misstated the law and intended to arouse the passion or prejudice of the jury. We disagree. 20 27 Putting aside the law regarding the effectiveness of assistance from counsel, we conclude the prosecutor’s statement was within the realm of appropriate argument. The prosecutor repeatedly advised the jurors of their obligation to follow the law. For example, soon after making the above statement that appellant claims was prosecutorial misconduct, the prosecutor told jurors: “In fulfillment of your oath, I ask you based on this evidence to do no more, but certainly no less than the law requires.” Moreover, the trial court instructed the jury that counsel’s statements are not evidence, and that they are duty-bound to follow the law. Specifically, the trial court stated: “If anything concerning the law said by the attorneys in their arguments or at any other time 28 13 21 22 23 24 25 26 1 2 3 during the trial conflicts with my instructions on the law, you must follow my instructions.” In this context, we conclude no reasonable jury would have interpreted the prosecutor’s use of the word “but” before this statement that society should not tolerate “this kind of behavior” as an invitation to disregard the law. . . . 4 5 6 Because the prosecutor’s statement was not misconduct, the failure to object to it did not amount to ineffective assistance by appellant’s counsel. We thus need not address whether his failure to object was prejudicial to appellant. 7 Resp’s Ex. B, People v. Clarke, A112245 at 12-13. 8 B. Analysis 9 It is improper for a prosecutor to express his or her opinion United States District Court For the Northern District of California 10 of the seriousness of the defendant’s crime to the jury. United 11 States v. Young, 470 U.S. 1, 18-19 (1985); United States v. McKoy, 12 771 F.2d 1207, 1211 (9th Cir. 1985). The concern is that this 13 might convey to the jury that there is evidence that was not 14 presented to the jury, but is known to the prosecutor, or that the 15 jury might view the prosecutor’s statements as carrying the 16 endorsement of the government and, as a result, might defer to the 17 prosecutor’s assessment rather than its own analysis of the 18 evidence. Young, 470 U.S. at 18-19. However, counsel are 19 permitted latitude in their presentation of closing summations, and 20 unless the improprieties are so gross as to prejudice the 21 defendant, and the prejudice has not been neutralized by the trial 22 judge, a new trial is not required. United States v. Potter, 616 23 F.2d 384, 391-92 (9th Cir. 1979). 24 Although the prosecutor communicated to the jury his opinion 25 of the seriousness of the crime, his comments were based on 26 evidence that had been presented to the jury; he did not give the 27 28 14 United States District Court For the Northern District of California 1 impression that he was relying on evidence that had not been 2 presented in the courtroom. 3 the jurors disregard their oath. 4 the prosecutor himself told the jurors to review the evidence and 5 to follow the law and the trial court instructed the jurors that 6 counsel’s statements were not evidence and that they were bound to 7 follow the law. 8 by the prosecutor’s statements. 9 specifically apply federal authority in determining that there was The prosecutor did not suggest that Rather, as the state court noted, This admonishment neutralized any prejudice caused Although the state court did not 10 no prosecutorial misconduct, its analysis is in accord with the 11 above-cited authority. 12 misconduct, counsel’s failure to object on this ground did not 13 constitute deficient performance. 14 Because there was no prosecutorial Furthermore, even if counsel’s failure to object on the ground 15 of prosecutorial misconduct was deficient, there was no resulting 16 prejudice. 17 guilty of murder under the law of felony murder, the prosecutor 18 was only required to establish that Petitioner took part in or 19 aided and abetted a burglary or robbery, and that Hamel’s murder 20 took place within the course of that burglary or robbery. 21 evidence that Petitioner participated in or aided or abetted a 22 burglary or robbery was very strong and there was little doubt that 23 Hamel was murdered during the course of that crime. 24 Petitioner has not shown that there is a reasonable probability 25 that, but for counsel’s failure to object on the grounds of 26 prosecutorial misconduct, the result of the proceeding would have 27 been different. 28 As discussed previously, to prove that Petitioner was 15 The Therefore, 1 2 The state court’s denial of this claim was not contrary to or an unreasonable application of established federal authority. 3 4 CONCLUSION For the foregoing reasons, the petition for a writ of habeas 5 corpus is denied. 6 close the file. The Clerk of the Court shall enter judgment and 7 8 IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 11 DATED: July 22, 2010 CLAUDIA WILKEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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