Binford v. Lambert

114 F. App'x 887

Opinion

MEMORANDUM

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Washington state prisoner Robert L. Binford appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition challenging his convictions for first-degree robbery, first-degree assault, taking a motor vehicle without permission and attempting to elude a pursuing police vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Binford contends that certain statements made by the prosecution, which called into question the veracity of Bin-ford’s statements to a polygraph examiner, constituted comments on his failure to testify at trial, in violation of his right against self-incrimination. We disagree. The prosecutor’s comments were not manifestly intended to call attention to the defendant’s failure to testify, or of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987). Moreover, the comments occurred in a single isolated incident, and in direct response to defense counsel’s use of the same statements to the polygraph examiner.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.