NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DESHAWN LEE CAMPBELL, No. 23-1917 D.C. No. Petitioner - Appellant, 5:12-cv-06089-BLF v. MEMORANDUM* GENA JONES,
Appellee.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted January 9, 2026 San Francisco, California
Before: NGUYEN and BENNETT, Circuit Judges, and MATSUMOTO, District Judge.** A California jury convicted Deshawn Campbell of the second-degree murder
of Jeffrey Fontana, a San Jose police officer. Campbell unsuccessfully sought to set
aside his conviction on direct appeal and in state post-conviction proceedings. He
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. also sought federal habeas relief under 28 U.S.C. § 2254, which the district court
denied.
Campbell raises three certified issues on appeal: (1) whether the prosecutor
committed misconduct during closing argument by misstating the burden of proof
and disparaging Campbell based on his race; (2) whether trial counsel was
ineffective for failing to adequately object to the prosecutor’s closing argument; and
(3) whether the prosecutor allowed material false evidence concerning a witness’s
plea agreement to go uncorrected, in violation of Napue v. Illinois, 360 U.S. 264
(1959).
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
1. On October 28, 2001, at 2:16 a.m., San Jose police officer Jeffrey
Fontana responded to a disturbance call. Around two hours later, Officer Fontana’s
body was discovered lying in the street, face up, with a gunshot wound above his
right eye and a pool of blood near his head. A .45-caliber shell casing was found at
the scene, and a tan Hyundai was parked about fifteen feet from Officer Fontana’s
body. The Hyundai was registered to Campbell’s father. Inside the vehicle,
investigators identified Campbell’s fingerprints and discovered an ATM card, bill,
and receipt bearing his name. A search of Campbell’s father’s home revealed a .45
caliber bullet which bore distinctive ejection markings and a stamp identical to those
on the casing found near Officer Fontana’s body.
2 23-1917 At the time of the shooting, Campbell had two outstanding arrest warrants and
had told a friend that he was facing several years in prison. When the friend urged
Campbell to turn himself in, Campbell said he “couldn’t handle that. He didn’t want
to do that.”
The evidence the State presented at trial included this evidence, as well as
evidence that while evading arrest, Campbell confessed to multiple people that he
killed Officer Fontana.1
At trial, Campbell testified, and admitted that he took a firearm and drove to
the crime scene in his father’s Hyundai. But Campbell claimed that another man,
Rodney McNary, shot Officer Fontana. In Campbell’s telling, he gave McNary the
gun, and McNary shot the officer. Campbell testified that McNary then handed
Campbell the gun, instructed him to get rid of it, and they both fled the scene. He
also testified that before his arrest, he told several people that McNary had killed
Officer Fontana.
1 Campbell went to the home of Sebastian Cadena on the night of the shooting. Campbell asked Cadena if he had seen the news or heard anything about him. Cadena said no and invited him inside. Campbell had Cadena use a computer to look up information about the killing of a San Jose police officer. After reading an article, Campbell said, “it was me,” “it was me, who did it.” Campbell also spoke with Louella Kissoon several days after the shooting. She asked Campbell if he knew he had killed a police officer. He responded, “I know.” “I panicked and – you know, I have all these warrants and I just f***ed up.” Kissoon’s brother, Gerald, asked Campbell if he had done it. Campbell responded: “yeah, yeah.” The State played for the jury audio recordings of the police interviews of Sebastian Cadena, Louella Kissoon, and Gerald Kissoon.
3 23-1917 The jury found Campbell guilty of: (1) the second-degree murder of Jeffrey
Fontana, a peace officer engaged in the performance of his duties, with the personal
use of a firearm; and (2) being a felon in possession of a firearm. The court
sentenced Campbell to life without parole, consecutive to 25 years to life,
consecutive to 40 months (consecutive to other sentences in unrelated felonies).
The California Court of Appeal affirmed the judgment and summarily denied
Campbell’s habeas and supplemental habeas petitions. The California Supreme
Court denied review.
The district court denied habeas relief and declined to issue a certificate of
appealability. We granted a certificate of appealability on three issues: (1) whether
the prosecutor committed misconduct during closing argument by misstating the
burden of proof and disparaging Campbell based on his race; (2) whether trial
counsel was ineffective for failing to adequately object to the prosecutor’s closing
argument; and (3) whether the prosecutor allowed material false evidence
concerning a witness’s plea agreement to go uncorrected, in violation of Napue v.
Illinois, 360 U.S. 264 (1959).
2. We review a district court’s denial of habeas relief de novo. See Lopez
v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). Our review is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA, a federal court may grant habeas relief on a claim that a state court resolved
4 23-1917 on the merits only when the state court’s “decision” was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented” in state
court, id. § 2254(d)(2). A state court decision is contrary to Supreme Court
precedent if “the state court arrives at a conclusion opposite to that reached by th[e]
Court on a question of law or if the state court decides a case differently than th[e]
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
U.S. 362, 412–13 (2000). “Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the correct governing
legal principle from th[e] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413.
“These standards require federal courts to give the ‘benefit of the doubt’ to
merits decisions issued by the courts of the sovereign States.” Klein v. Martin,
No. 25-51, 2026 WL 189976, at *4 (U.S. Jan. 26, 2026) (per curiam) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). “So in order to obtain
federal habeas relief,” the Supreme Court has emphasized, “a state prisoner must
‘show far more’ than ‘clear error.’” Id. (quoting Shinn v. Kayer, 592 U.S. 111, 118
(2020) (per curiam)). “The habeas claimant must instead establish that the state
court ‘blunder[ed] so badly that every fairminded jurist would disagree’ with the
5 23-1917 decision.” Id. (alteration in original) (quoting Mays v. Hines, 592 U.S. 385, 392
(2021) (per curiam)).
When the last state court to adjudicate a constitutional claim on the merits did
not explain its denial, “the federal court should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant
rationale.” Wilson v. Sellers, 584 U.S. 122, 125 (2018). The federal court “should
then presume that the unexplained decision adopted the same reasoning.” Id.
3. The state court did not unreasonably apply clearly established federal
law in determining that the prosecutor committed no misconduct during closing
summations at Campbell’s trial. A prosecutor’s misconduct is constitutional error
only when it “so infect[s] 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)); see also Parker v. Matthews,
567 U.S. 37, 45 (2012) (per curiam) (explaining that Darden constitutes the relevant
Supreme Court precedent for a due process claim based on a prosecutor’s improper
comments in closing argument).
In Darden, the prosecutor made “offensive comments” about the defendant
during closing argument, saying that he was an “animal” that “shouldn’t be out of
his cell unless he has a leash on him and a prison guard at the other end of that leash.”
477 U.S. at 180 & nn.11–12. The prosecutor also told the jury that he “wish[ed] [the
6 23-1917 defendant] had used [a gun] on himself”; “wish[ed] someone had walked in the back
door and blown [the defendant’s] head off”; and “wish[ed] that [he] could see [the
defendant] sitting here with no face, blown away by a shotgun.” Id. at 180 n.12.
The Supreme Court found that these comments “undoubtedly were improper.” Id.
at 180. But the Court concluded that they did not deprive the defendant of a fair trial
because the prosecutor “did not manipulate or misstate the evidence,” the trial court
properly instructed the jury “that the arguments of counsel were not evidence,” and
the “heavy” weight of the evidence against the defendant “reduced the likelihood
that the jury’s decision was influenced by argument.” Id. at 181–82.
Campbell raised on direct appeal claims that the prosecutor violated his due
process rights by misstating the burden of proof and disparaging him based on his
race. The California Court of Appeal rejected both contentions. In doing so, the
court correctly identified the appropriate standard.
We see no error related to the prosecutor’s recitation of the burden of proof.
As the California Court of Appeal explained, “[t]he court instructed the jury that the
[State] had the entire burden of establishing [Campbell]’s guilt and the prosecutor
admitted that he had the burden to prove [Campbell] guilty beyond a reasonable
doubt.” And the prosecutor acknowledged his burden at several points during
closing argument.
7 23-1917 Campbell focuses on the prosecutor’s comments that Campbell had a
“responsibility” to call certain witnesses and bring in evidence available to him. But
Darden taught us to “place these remarks in context.” Id. at 179. Here, the
prosecutor was responding to Campbell’s testimony that he told several people
McNary had killed Officer Fontana. The prosecutor explained, “[t]here were many
opportunities for [defense] Counsel to try and prove that [Campbell] was telling the
truth. . . . He was the one who was privy and knew where these witnesses were. He
was the one who knew what he told these witnesses.”
These comments appropriately conveyed that, though the State had the burden
of proof, the jury could nevertheless consider whether the defense had come forward
with evidence to support the contentions Campbell made on the witness stand.
Consequently, the prosecutor did not engage in misconduct by arguing that
Campbell failed to call logical witnesses that would corroborate his claim that
McNary was the shooter. See United States v. Soulard, 730 F.2d 1292, 1306 (9th
Cir. 1984) (“A prosecutor may properly comment upon the defendant’s failure to
present exculpatory evidence, so long as it is not phrased to call attention to the
defendant’s own failure to testify.”).
The California Court of Appeal reasonably determined that the prosecutor’s
comments did not misrepresent the burden of proof and thus were not improper.
Campbell also contends that the prosecutor disparaged him by appealing to
8 23-1917 racial prejudice. During closing argument, the prosecutor asserted that Campbell’s
defense “consists of fear mongering. They put up a booking photograph of Rodney
McNary, and they play him as the boogeyman. He’s a mean-looking black man, and
they’re trying to intimidate you with that.” “But when you look at these two men,”
the prosecutor continued, “[Campbell] and McNary, I suggest to you there’s little
difference between them.” Then, discussing a letter that Campbell had written, the
prosecutor described Campbell as “fairly illiterate.” “[W]hen you go through the
letter,” the prosecutor told the jury, “you sit there and read it aloud, you laugh or you
feel dismayed at . . . I don’t know what they call it nowadays. Ebonics? I remember
about ten years ago they were calling it that. And some of that stuff . . . is the type
of stuff that people in the ‘hood just write that way or speak that way.” Defense
counsel did not object to these remarks.
The prosecutor’s race-based comments undoubtedly were improper. See
McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (“The Constitution prohibits
racially biased prosecutorial arguments.”). But to demonstrate a constitutional error,
it “is not enough that the prosecutor[’s] remarks were undesirable or even universally
condemned.” Darden, 477 U.S. at 181 (citation omitted). The extensive and
outrageous misconduct that the Supreme Court held insufficient in Darden is worse
than the prosecutor’s comments here. See id. at 179–81 & nn.9–12. And we agree
with the Court of Appeal that “[t]he evidence that [Campbell] was the person who
9 23-1917 shot Officer Fontana was very strong, notwithstanding [Campbell’s] testimony that
he was not the shooter.” Given the strength of the evidence against Campbell and
the trial court’s jury instructions,2 we cannot say that the prosecutor’s remarks “so
infected the trial with unfairness” as to deny Campbell due process. Id. at 181
(quoting Donnelly, 416 U.S. at 643).
We conclude that the state court’s rejection of Campbell’s claims was not
contrary to, nor did it involve an unreasonable application of, Supreme Court
precedent, including Darden.
4. The state court did not act unreasonably in denying Campbell’s
ineffective assistance of counsel (“IAC”) claims. To evaluate an IAC claim, we
apply the standard the Supreme Court announced in Strickland v. Washington and
ask whether defense counsel’s performance was deficient and resulted in prejudice.
See 466 U.S. 668, 687 (1984). The deficient performance prong requires that the
defendant show that his counsel’s errors fell so far below the level of competent
representation that it was as though he had no counsel at all. See id. On the prejudice
prong, the defendant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. When, as here, “a defendant challenges a conviction, the question is whether
2 The jury was instructed that it must decide what happened based only on the evidence presented and that the attorneys’ remarks during closing arguments were not evidence.
10 23-1917 there is a reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.” Id. at 695. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,” the Supreme
Court has instructed, “that course should be followed.” Id. at 697.
Campbell alleges two separate errors. He contends that his trial counsel was
ineffective for failing to request a curative admonition in connection with the
prosecutor’s burden-shifting comments, to which he did object, and for failing to
object to the prosecutor’s race-based comments. The California Court of Appeal
addressed both substantive contentions on the merits of Campbell’s due process
claims, finding that the prosecutor did not commit prejudicial misconduct. But the
court did not directly discuss Campbell’s IAC claims or consider them under the
Strickland framework.
Because the state court’s decision was “unaccompanied by an explanation”
specifically resolving Campbell’s IAC claims, we must determine what theories
“could have supported[] the state court’s decision” and then “ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.”
Harrington v. Richter, 562 U.S. 68, 98, 102 (2011). We agree with the district court
that even assuming counsel’s performance was deficient, the state court could have
reasonably determined that Campbell was not prejudiced by counsel’s failure to
11 23-1917 object to the race-based comments or seek a curative instruction in connection with
the burden-shifting comments.
The prosecutor’s comments were not evidence, and, as noted, the jury was so
instructed. See Strickland, 466 U.S. at 695–96 (distinguishing errors that “had a
pervasive effect on the inferences to be drawn from the evidence” and “alter[ed] the
entire evidentiary picture” from those that “had an isolated, trivial effect”). Here too
we must also consider the weight of the evidence against Campbell. See id. at 696
(“[A] verdict or conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support.”).
Campbell insists that this was a “close case” because of the evidence pointing to
McNary’s guilt. But he does not confront the substantial evidence of his own guilt.
The state court had ample basis to think that any real possibility of Campbell being
acquitted was eclipsed by the physical and forensic evidence, witness testimony, and
his admission that he was present at the shooting and shot Officer Fontana. See
supra n.1.
Against this backdrop, Campbell has fallen short of demonstrating that the
“likelihood of a different result [was] substantial, not just conceivable.” Harrington,
562 U.S. at 112. Thus, it would not have been unreasonable for the state court to
conclude that Campbell did not satisfy Strickland’s prejudice standard, especially
given the California Court of Appeal’s statement as to the strength of the evidence.
12 23-1917 5. The state court could have reasonably concluded that the prosecutor did
not allow materially false evidence to go uncorrected. “To establish a Napue
violation, a defendant must show that the prosecution knowingly solicited false
testimony or knowingly allowed it ‘to go uncorrected when it appear[ed].’” Glossip
v. Oklahoma, 604 U.S. 226, 246 (2025) (alteration in original) (quoting Napue, 360
U.S. at 269). “If the defendant makes that showing, a new trial is warranted so long
as the false testimony” was material—“that is, if it ‘in any reasonable likelihood
[could] have affected the judgment of the jury.’” Id. (alteration in original) (internal
quotation marks omitted) (quoting Giglio v. United States, 405 U.S. 150, 154
(1972)). And “[e]vidence can be material,” the Supreme Court has explained, “even
if it ‘goes only to the credibility of the witness.’” Id. at 248 (quoting Napue, 360
U.S. at 269).
Campbell’s Napue claim involves the testimony of Janielle Carter, McNary’s
girlfriend. Carter faced criminal charges for second-degree robbery. She ultimately
pleaded nolo contendere to the charge of being an accessory and, at the time she
entered the plea, agreed that her sentencing would be delayed until the conclusion
of Campbell’s case. The prosecutor in Campbell’s trial, Lane Liroff, also was the
prosecutor assigned to Carter’s case.
At Campbell’s trial, Carter denied any knowledge that Liroff was the
prosecutor on her criminal case or that her sentencing had been postponed until after
13 23-1917 Campbell’s trial. She also denied that her cooperation as a witness could affect her
sentence. Then, at the close of trial, defense counsel read the following stipulation
to the jury: “Janielle Carter was convicted in 2003 to the charge of accessory, a
felony. At the time she pled, it was agreed that her sentencing would be delayed
until the conclusion of the prosecution against Deshawn Campbell for the murder of
San Jose Officer Jeffrey Fontana. Lane Liroff is the prosecutor.”
The State concedes that the prosecutor knew Carter’s testimony was false, but
it urges that the testimony was not material in light of the stipulation. No state court
issued a reasoned decision addressing Campbell’s Napue claim. We presume the
claim was adjudicated on the merits, see Harrington, 562 U.S. at 98–99, and find
that the state court could have reasonably determined that the false testimony was
immaterial.
Carter may have helped the State’s case, but her testimony was not “the only
direct evidence of [Campbell]’s guilt.” Cf. Glossip, 604 U.S. at 248 (“Because
Sneed’s testimony was the only direct evidence of Glossip’s guilt . . ., the jury’s
assessment of Sneed’s credibility was necessarily determinative here.”). Nor was
this a case where the jury could “convict [Campbell] only if it believed [Carter].”
See id. Indeed, Carter did not provide any direct evidence that Campbell killed
Officer Fontana. But other physical and testimonial evidence presented by the State,
along with Campbell’s own admissions, tied him to the shooting. Given this other
14 23-1917 evidence, Carter’s testimony was not so critical as to “undermine[] confidence in the
verdict.” See id. at 250; see also Catlin v. Broomfield, 124 F.4th 702, 743 (9th Cir.
2024) (“[W]hen there is substantial evidence of guilt, false testimony bearing on the
credibility of a single witness is less likely to be material.”). And the stipulation
read to the jury appropriately and sufficiently mitigated any prejudice caused by the
false testimony.
For these reasons, the state court could have reasonably concluded that there
is no reasonable likelihood that Carter’s testimony affected the jury’s verdict. Thus,
we conclude that the state court’s rejection of Campbell’s Napue claim was not
contrary to, nor did it involve an unreasonable application of, Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1).
6. Campbell contends that the panel should expand the certificate of
appealability. But contrary to our Circuit Rules, he did not brief any uncertified
issues or otherwise justify expansion beyond directing us to his original motion. See
Ninth Cir. R. 22-1(e). By failing to adequately develop his argument that we should
expand the certificate of appealability, Campbell has forfeited it. See Iraheta-
Martinez v. Garland, 12 F.4th 942, 959 (9th Cir. 2021) (concluding that a petitioner
forfeits an argument not adequately developed in his opening brief).
Campbell’s motion to supplement the record, Dkt. No. 15, is granted.
AFFIRMED.
15 23-1917