(HC) Saterfield v. Matteson

• Court: District Court, E.D. California
• Decided: May 12, 2025
• Docket: 2:22-cv-01513
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SATERFIELD, Case No. 2:22-cv-1513-WBS-JDP (P) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 GISELLE MATTESON, 15 Respondent. 16 17 18 Petitioner Richard Saterfield, a state prisoner proceeding without counsel, seeks a writ of 19 habeas corpus under 28 U.S.C. § 2254, contending that (1) the jury was improperly given 20 instructions regarding mutual combat and initial aggressor, which deprived him of a fair trial; 21 (2) his mandatory sentence of life without parole violates state and federal law because he was a 22 youthful offender at the time of the offense; and (3) the cumulative effect of prosecutorial 23 misconduct during closing arguments violated his Fourteenth Amendment right to a fair trial. 24 ECF No. 7. Respondents have filed an answer. ECF No. 16. After reviewing the pleadings and 25 the record, I recommend that the petition be denied in part and dismissed in part. 26 27 28 1 Background 2 I have reviewed the background summary drafted by the state appellate court on 3 petitioner’s direct appeal. It is correct, and I reproduce it here: 4 Prosecution Witnesses 5 In May 2017 Saterfield went to a store to have lunch with Hoang and Hoang’s friend. When they arrived, Saterfield told the other 6 two he was not hungry and wanted to make a purchase at a nearby pharmacy. 7 Saterfield, 21 years old at the time, returned to the store about 15 8 minutes later, while Hoang and his friend were still eating, and told Hoang that “some guys [are] following me outside. We might want 9 to do something with them.” Saterfield did not appear nervous or agitated to a store employee who saw him return and speak to his 10 companions and nothing about Saterfield’s behavior worried Hoang’s friend. 11 Saterfield was holding Hoang’s backpack (bag) that had been left 12 inside the vehicle that transported the group to the store; Hoang’s gun was inside the bag. Saterfield and Hoang left the store together 13 and had an animated conversation with two males who stood a few feet away from them and “looked angry,” according to Hoang’s 14 friend, who remained inside the store. 15 During the confrontation, Hoang took his gun from the bag and fatally shot the two males, teenage brothers Daniel “Robert” Murti 16 and Sergio Murti. Sergio died on the spot, but Robert ran away. 17 Immediately after that shooting, both defendants got into Hoang’s car, and drove away as more gunshots were fired from the car. 18 Video footage and eyewitness testimony indicated that, mere 19 minutes before the shooting, Saterfield crossed paths with the Murti brothers and their female companion at a nearby liquor store. After 20 Saterfield left the liquor store, one Murti brother commented to the other that “somebody across the street was . . . waving them down 21 or saying something to them.” The Murti brothers and their companion crossed the street toward the shopping mall that housed 22 the store where Hoang was eating lunch. Five minutes later, the brothers’ companion (who did not accompany the brothers to the 23 store where Hoang was eating) heard about eight gunshots, and then saw Robert swaying and walking slowly toward her, with blood on 24 his white shirt. She heard tires screeching, and around five more gunshots, as Robert “lean[ed] forward,” trying to duck the shots. 25 The companion ran to Robert and held him as he fell to the ground. 26 An autopsy revealed that both Murtis died from multiple gunshot wounds. Robert suffered two gunshots to the torso. Sergio 27 suffered gunshots to the torso, thigh, and buttocks. Multiple civilian witnesses who were in and around the various commercial 28 1 establishments near the shooting provided testimony about their percipient observations. 2 Hoang’s Testimony 3 Saterfield did not testify; Hoang did. 4 Hoang explained that when Saterfield returned to the store where 5 Hoang was eating and—while holding the bag that had been left in the car—told Hoang that “some niggas [were] following him,” 6 Hoang realized they “were in trouble and [they] might have to use” the gun that was in the bag. Hoang ate more food and then joined 7 Saterfield (who was still holding the bag) at the front of the store. Saterfield said, “that’s them right there,” indicating the Murti 8 brothers, who were walking in a parking lot towards defendants. The Murti brothers “looked mad and agitated,” and were waving at 9 defendants to come out of the store. They had their hands in their pants, suggesting to Hoang (given his experience with two episodes 10 of gun violence in the months before this incident) that they were concealing a gun and were rival gang members who wanted to harm 11 Hoang and Saterfield. 12 As defendants left the store, Saterfield passed the bag containing the gun to Hoang, and the Murti brothers advanced toward 13 defendants, appearing “more, more agitated” and “more, more angry.” They said, “What were you throwing up, nigga? Where 14 you from?” “This is Oak Park. You don’t belong here.” This led Hoang to conclude the brothers were gang members asserting that 15 defendants were “in their territory” and that the brothers thought defendants were rival gang members. Hoang thought that 16 Saterfield may have made gang signs at them when he was away from the store while Hoang was eating. Saterfield replied that he 17 was from Oak Park. Hoang testified that he was a gang member himself, who “grew up with gang members or in bad 18 neighborhoods” and feared the Murti brothers would shoot him and Saterfield. He removed his gun from the bag and “racked a bullet 19 in the chamber” “right in front of” the brothers, who continued advancing towards Hoang and Saterfield with their “hands in their 20 pants fidgeting.” 21 Hoang testified that he believed the brothers were armed and that “it was . . . defend [him]self or die.” He fired his gun at the Murti 22 brothers, ran to his car, and drove away with his friend and Saterfield. 23 Video Evidence 24 Video footage admitted at trial showed as follows: Saterfield comes 25 to the store (holding the bag) where Hoang is eating lunch at a table with his friend, and speaks to Hoang around 11:58:12; Satterfield 26 walks a short distance away from the table to look outside, and speaks to Hoang again at 11:58:23; Satterfield walks away from the 27 table a second time, this time walking all the way to the front door, looks outside around 11:58:48, and walks back towards Hoang; at 28 11:59:04 Saterfield and Hoang together approach the front door of 1 the store as they look outside; around 11:59:07 the Murti brothers appear outside the store, walking parallel to the front door, on the 2 other side of several cars parked immediately in front of the store; around 11:59:12 Saterfield opens the front door with his left hand 3 and steps outside as, with his right arm, he extends the open bag behind him to Hoang, who takes the bag at 11:59:14, as defendants 4 take a few steps toward the Murti brothers and away from the front door; between 11:59:15 and 11:59:19, the Murti brothers walk 5 toward defendants; around 11:59:20, Saterfield takes a step or two closer to one of the Murti brothers, and the other Murti brother 6 walks closer to both defendants; at 11:59:24, Hoang fires the gun. 7 No evidence was introduced at trial indicating that either Murti brother actually possessed a weapon at the time of the shooting. 8 Closing Arguments 9 The prosecutor argued to the jury that “[s]omething happened 10 between the liquor store” and the store where Hoang was eating lunch, “[w]e know that.” “Now, what we also know is that [] 11 Saterfield almost certainly started it,” because the Murti brothers’ attention “appear[ed] to turn to whatever [] Saterfield [was] 12 doing . . . across the street.” “We know that [] Saterfield . . . chose to obtain the gun and bring it into play. Without that act, this is a 13 fistfight at worst.” The prosecutor’s theory as to Saterfield was that he intended to kill the Murti brothers and aided the shooting by 14 giving Hoang the bag with the gun. 15 As for Hoang, the prosecutor argued he was “preparing to shoot before [he] stepped outside . . . before there’s an angry 16 confrontation,” which was inconsistent with a self-defense theory. “If you’re terrified, if you really think your life is in danger, what 17 do you do? You stay inside. You call the police. You ask for help. No reasonable person steps outside of safety to confront this 18 terribly fearsome thing. Ever. You step outside when you want to confront and commit violence.” 19 Hoang’s counsel argued the Murti brothers began the escalation at 20 the liquor store when they agreed to “go check . . . out” what Saterfield was communicating to them, across the street. Then, as 21 depicted in the video footage, the brothers “moved up aggressively” toward defendants. Counsel argued the jury could “see the angry 22 look on the face” of one of the brothers “at 11:59:20. Does that support what [] Hoang says that the Murtis were angry? They had 23 their hands in their pants, which made [Hoang] believe they had a gun. It was something he’s seen before.” “If you know the 24 meaning of somebody with their hands down their pants trying to convince you that they are armed to continue their progression and 25 their escalation of this, it becomes highly significant.” Counsel emphasized that “after [Hoang] racked his gun, they kept pressing 26 up, they kept pressing up. . . . The Murtis wanted to build th[e] tension and to progress this and accelerate this.” Hoang, “believed 27 that these guys were armed,” and he was “sitting there with his gun racked and that would not stop . . . the Murtis’ progression. It was 28 the Murtis’ acceleration of the events.” 1 Saterfield’s counsel suggested the evidence did not demonstrate that Saterfield “started the ball rolling” by “do[ing] something 2 provocative over at the liquor store.” Rather, Saterfield was “concerned” that the Murti brothers were “following [him], and 3 he’s pacing” in the store, and the jury should not “guess . . . wrong” why Saterfield got the bag out of Hoang’s car and brought it into 4 the store, because “[g]reat number[s] of people have guns for protection.” A reasonable view of the facts could be that Saterfield 5 “took [] Hoang out there as a show of force to tell [the Murti brothers] to shut up and leave us alone.” “Not violence. 6 Protection.” 7 Verdicts and Sentences 8 The jury found defendants each guilty on two counts of first degree murder (§ 187, subd. (a)) and found true that: they committed 9 multiple murders within the meaning of section 190.2, subdivision (a)(3); Hoang personally and intentionally discharged a firearm 10 which caused the Murti brothers’ deaths (§ 12022.53, subd. (d)); and Saterfield personally and intentionally discharged a firearm in 11 the commission of murder (§ 12022.53, subd. (c)). 12 In July 2019 the trial court sentenced each defendant to consecutive LWOP terms for the two special circumstance murders. The court 13 added 25 years to Hoang’s sentence and 20 years to Saterfield’s sentence for their respective firearm enhancements. Both 14 defendants timely appealed. 15 ECF No. 17-10 at 2-7. Petitioner petitioned the California Supreme Court to review this decision, 16 but the California Supreme Court denied the petition. ECF No. 17-12 at 1. 17 Discussion 18 I. Legal Standards 19 A federal court may grant habeas relief when a petitioner shows that his custody violates 20 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 21 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 22 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 23 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the 24 last state court to have issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. 25 Sellers, 584 U.S. 122, 125 (2018); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) 26 (“Because, here, neither the court of appeal nor the California Supreme Court issued a reasoned 27 opinion on the merits of this claim, we look to the trial court’s decision.”); McCormick v. Adams, 28 621 F.3d 970, 975-76 (9th Cir. 2010) (reviewing the decision of the court of appeal, which was 1 last reasoned decision of a state court); Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) 2 (“Because the California Supreme Court denied review of Gill’s habeas petition without 3 comment, we look through the unexplained California Supreme Court decision to the last 4 reasoned decision . . . as the basis for the state court’s judgment.”) (internal quotations omitted). 5 Under AEDPA, a petitioner may obtain relief on federal habeas claims that have been 6 “adjudicated on the merits in state court proceedings” only if the state court’s adjudication 7 resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly 8 established Federal law, as determined by the Supreme Court of the United States” or (2) “based 9 on an unreasonable determination of the facts in light of the evidence presented in the State court 10 proceeding.” 28 U.S.C. § 2254(d). 11 II. Analysis 12 A. Jury Instructions 13 Petitioner argues that the trial court improperly instructed the jury on CALCRIM No. 14 3471 and CAL CRIM 3472—the mutual combat and initial aggressor instructions. ECF No. 7 at 15 9. He contends that, in giving these instructions, the trial court improperly limited his ability to 16 present his claim of self-defense, thereby violating his right to a present a defense and to have a 17 fair trial. Id. The state court of appeal rejected these arguments in his direct appeal: 18 Both defendants claim the trial court erred in instructing the jury with CALCRIM Nos. 3471 [Right to Self-Defense: Mutual Combat 19 or Initial Aggressor] and 3472 [Right to Self-Defense: May Not Be Contrived]. We see no error. 20 A. Background 21 The trial court instructed the jury that “[s]ome of the[] instructions 22 [might] not apply, depending on [the jury’s] findings about the facts of the case,” and that the jury had to “separately consider the 23 evidence as it applie[d] to each defendant . . . separately.” The court also instructed on, inter alia, an aider and abettor’s liability for 24 an intended crime (CALCRIM No. 401), justifiable homicide due to self-defense (CALCRIM No. 505), and voluntary manslaughter 25 culpability resulting from imperfect self-defense (CALCRIM No. 571). 26 Over objection, the trial court instructed the jury pursuant to 27 CALCRIM No. 3471 that: “A person who engaged in mutual combat or who starts a fight has a right to self-defense only if: [¶] 28 One, he actually and in good faith tried to stop fighting; [¶] Two, he 1 indicated by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting 2 and that he had stopped fighting; [¶] And three, he gave his opponent a chance to stop fighting. [¶] If a defendant meets these 3 requirements, he then had a right to self-defense if the opponent continued to fight. 4 “However, if the defendant used only nondeadly force and the 5 opponent responded with such sudden and deadly force that a defendant could not withdraw from the fight, then a defendant had 6 the right to defend himself with deadly force and was not required to try to stop fighting . . . . 7 “A fight is mutual combat when it began by mutual consent or 8 agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.” 9 At Hoang’s counsel’s request, the court added the following 10 language not in the CALCRIM No. 3471 pattern: “The words combat and fight mean to engage in a violent struggle or battle 11 involving physical contact and not merely to engage in a verbal argument, dispute or taunting.” 12 At a hearing on the proposed jury instructions, Hoang’s counsel 13 argued there was no “evidence of actual mutual combat or evidence of a fight to confrontation” to justify CACRIM No. 3471. He 14 argued that the instruction was “not for a confrontation where somebody believes there’s a threat of being shot or robbed. It’s not 15 the situation we have.” Saterfield’s counsel argued: “[T]here’s a difference between fighting and confrontation. . . . I think we had a 16 confrontation. And both parties were involved in it, all four of them. The question is can confrontation be made equal to combat 17 and fight.” 18 Without objection, the trial court also instructed the jury with CALCRIM No. 3472: “A person does not have the right to self- 19 defense if he provokes a fight or a quarrel with the intent to create an excuse to use force.” 20 B. Analysis 21 Saterfield contends CALCRIM No. 3471 was not supported by 22 substantial evidence, and that its provision to the jury, combined with the prosecutor’s argument, diminished the prosecution’s 23 burden of proof “on an essential element of the crime of murder,” and prejudicially violated his rights to present his defense and to a 24 fair trial. As for CALCRIM No. 3472, Saterfield acknowledges it correctly states the law “in some circumstances,” but argues its 25 provision to the jury in this case “improperly restricted the availability of self-defense,” in part because it “undermined 26 Hoang’s testimony about feeling afraid of escalating violence because of his personal experience.” 27 . . . 28 1 The People contend substantial evidence supported giving CALCRIM No. 3471, and, even if improper, any error was 2 harmless because of the paucity of evidence supporting a self- defense claim. The People further contend both defendants’ 3 appellate challenges to CALCRIM No. 3472 are forfeited for failure to object or seek to modify at trial. 4 1. General Principles 5 A trial court should give a requested instruction only if it is 6 supported by substantial evidence, which is “‘evidence that a reasonable jury could find persuasive.’” (People v. Kanawyer 7 (2003) 113 Cal.App.4th 1233, 1243; see People v. Leon (2020) 8 Cal.5th 831, 848.) 8 “‘We determine whether a jury instruction correctly states the law 9 under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial 10 court “fully and fairly instructed on the applicable law.” [Citation.] “‘In determining whether error has been committed in giving or not 11 giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and 12 capable of understanding and correlating all jury instructions which are given.’ [Citation.]” [Citation.] “Instructions should be 13 interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible [of] such interpretation.” 14 [Citation.]’ [Citation.]” (People v. Wetle (2019) 43 Cal.App.5th 375, 381-382.) 15 2. Forfeiture of the challenge to CALCRIM No. 3472 16 A party forfeits any challenge to a jury instruction that was correct 17 in law and responsive to the evidence if the party failed to object in the trial court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011- 18 1012; see People v. Nguyen (2015) 61 Cal.4th 1015, 1051 [“If defendant believed the instruction was incomplete or misleading, he 19 ‘had the obligation to request clarifying language’”].) This rule does not apply if the instruction was an incorrect statement of law 20 (Hudson, at p. 1012), nor does it apply if the instructional error affected defendant’s substantial rights (People v. Ramos (2008) 163 21 Cal.App.4th 1082, 1087). Thus, in order to determine whether defendants forfeited their arguments as to CALCRIM No. 3472, we 22 must first determine whether the instruction was a correct statement of the law and responsive to the evidence, and whether it affected 23 defendants’ substantial rights. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) 24 CALCRIM No. 3472 reads: “A person does not have the right to 25 self-defense if he provokes a fight or a quarrel with the intent to create an excuse to use force.” This is a generally correct statement 26 of law (see People v. Eulian (2016) 247 Cal.App.4th 1324, 1333) and it was responsive to the evidence, as the record suggests that 27 Saterfield lured the Murti brothers away from the liquor store and toward Hoang (provocation), and then escalated the situation by 28 bringing a gun into the store and telling Hoang that he was being 1 followed and that the two “might want to do something” about it (intent to create an excuse to use force). 2 The contention that People v. Ramirez (2015) 233 Cal.App.4th 940 3 teaches that CALCRIM No. 3472 required modification in the instant case is unpersuasive. In Ramirez, the appellate court 4 concluded the instruction did not accurately state governing law as to the facts before it because “one who provokes a fistfight” still 5 retains the right of self-defense “if the adversary resorts to deadly force.” (Ramirez, at p. 947, italics added.) Ramirez is 6 distinguishable, because here there was substantial evidence that Saterfield provoked a gunfight, not a fistfight. A gunfight is deadly 7 at the outset. Having provoked a gunfight, Saterfield did not retain the right to claim self-defense in connection with the Murti 8 brothers’ deaths. 9 Thus, CALCRIM No. 3472 adequately instructed the jury on the law, and defendants’ substantial rights were not affected. 10 Defendants have forfeited their challenge by failing to object or request modification in the trial court. 11 3. CALCRIM No. 3471 12 In People v. Ross (2007) 155 Cal.App.4th 1033, cited by all parties’ 13 briefing, the defendant was convicted of aggravated assault and battery after the trial court instructed the jury, over defense 14 objection, that the defendant had not acted in self-defense if he had been engaged in mutual combat with the alleged victim. (Id. at p. 15 1036.) The appellate court reversed the judgment, explaining the doctrine of mutual combat contemplates “fighting by mutual 16 intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the 17 characteristics of a legally binding contract; . . . . But there must be evidence from which the jury could reasonably find that both 18 combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (Id. at pp. 1046-1047.) 19 Here, Saterfield communicated with the Murti brothers to get them 20 to follow him across the street; he brought a gun into the store; he told Hoang that multiple males were following him and that 21 defendants “might want to do something with them”; he pointed the victims out to Hoang as they approached the store; he gave the gun 22 to Hoang as defendants stepped out of the store; he advanced on the Murti brothers as they initially confronted defendants; and he 23 continued to advance on the brothers moments before Hoang fired his gun. On those facts, a jury could reasonably find that there was 24 at least an implied agreement to fight between Saterfield and the Murti brothers. Accordingly, CALCRIM No. 3471 was potentially 25 applicable to Saterfield. 26 . . . 27 As to both defendants, the prosecutor’s closing argument was in line with the evidence and CALCRIM No. 3471 (as well as 28 CALCRIM No. 3472): “If you’re terrified, if you really think your 1 life is in danger, what do you do? You stay inside. . . . No reasonable person steps outside of safety to confront this terribly 2 fearsome thing. Ever. You step outside when you want to confront and commit violence.” 3 The jury was told that some instructions may not apply to the facts 4 as it found them, and that it had to “separately consider the evidence as it applie[d] to each defendant separately.” Thus, if the 5 jury found that Saterfield started the fight and applied CALCRIM No. 3471 to his self-defense claim, but decided Hoang was ignorant 6 of Saterfield’s role, the jury was told that the instruction did not apply to Hoang merely by virtue of its application to Saterfield. For 7 that reason, Hoang’s contention that CALCRIM No. 3471 “effectively negated” his self-defense theories fails to persuade, as 8 the jury would not necessarily have concluded that Hoang had no right to self-defense if it found that Saterfield started the fight. 9 Further, Hoang’s argument ignores that the trial court instructed the jury (at his request) that “combat” and “fight” excluded a “verbal 10 argument, dispute or taunting.” Contrary to Hoang’s contention, any juror’s belief that Saterfield started a verbal confrontation 11 would not lead to the conclusion that Hoang had no right to self- defense, as the jury was told the instruction did not apply to words 12 alone. For all these reasons, CALCRIM No. 3471 was properly given. 13 14 ECF No. 17-10 at 7-13. 15 Petitioner’s claim should be denied. Generally, claims of instructional error are questions 16 of state law and are not cognizable on federal habeas review. See Menendez v. Terhune, 422 F.3d 17 1012, 1029 (9th Cir. 2005) (“The court’s determination that this instruction was not appropriate 18 . . . resulted from interpretation of state law. Any error in the state court’s determination of 19 whether state law allowed for an instruction in this case cannot form the basis for federal habeas 20 relief.”). “[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for 21 habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (citing Marshall v. Lonberger, 459 22 U.S. 422, 438, n.6 (1983) (“[T]he Due Process Clause does not permit the federal courts to 23 engage in a finely tuned review of the wisdom of state evidentiary rules.”)). 24 A petitioner may not “transform a state-law issue into a federal one merely by asserting a 25 violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (citing Melugin 26 v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994)). Instead, to prevail on a collateral attack of state- 27 court jury instructions, a petitioner must do more that prove that the instruction was erroneous. 28 1 See Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must prove that the improper 2 instruction “by itself so infected the entire trial that the resulting conviction violated due process.” 3 Estelle, 502 U.S. at 72 (internal citations omitted). Even if there were constitutional error, habeas 4 relief cannot be granted absent a “substantial and injurious effect” on the verdict. Brecht v. 5 Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 6 (1946)). A state prisoner is not entitled to federal habeas relief unless the instructional error 7 resulted in “actual prejudice.” Id. If the court is convinced that the error did not influence the 8 jury, or had little effect, the judgment should stand. See O’Neal v. McAninch, 513 U.S. 432, 437 9 (1995). 10 A federal court’s review of a claim of instructional error is highly deferential. See 11 Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the 12 instruction in isolation but must consider the context of the entire record and of the instructions as 13 a whole. See id. The mere possibility of a different verdict is too speculative to justify a finding 14 of constitutional error. See Henderson, 431 U.S. at 157. Importantly, “a state court’s 15 interpretation of state law, including one announced on direct appeal of the challenged conviction, 16 binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see 17 also Romero v. Cal. Dep’t of Corr. and Rehab., 405 F. App’x 208, 211 (9th Cir. 2010) (“The 18 California Court of Appeal’s conclusion that the instructions were adequate as a matter of state 19 law binds us.”); Gonzalez v. Gonzalez, 394 F. App’x 415, 415 (9th Cir. 2010) (“The California 20 Court of Appeal’s conclusion that there was no instructional error is a binding interpretation of 21 state law.”). 22 To the extent that petitioner argues that the jury instructions themselves were erroneous, 23 the issue is one of state law and is not cognizable on federal habeas review. See Menendez, 422 24 F.3d at 1029; Estelle, 502 U.S. at 71-72. Petitioner cannot save this claim by arguing that the jury 25 instructions violated his due process rights, because the record reflects that these instructions did 26 not infect the entire trial such that his resulting conviction violates due process. See Estelle, 502 27 U.S. at 72. The record reflects that petitioner was given an opportunity to present his defense and 28 the jury was given instructions related to self-defense in conjunction with the challenged 1 instructions. The jury was given the appropriate array of jury instructions, and simply because 2 the jury reached an unfavorable result for petitioner does not mean that the challenged jury 3 instructions violated petitioner’s due process rights. The state appellate court’s decision is not an 4 unreasonable application of, or contrary to, federal law, and I recommend that this claim be 5 denied. 6 B. Eighth Amendment 7 Petitioner argues that his mandatory sentence of life without the possibility of parole 8 violates California law, the Eighth Amendment, and the Fourteenth Amendment because he was 9 twenty-one years old at the time of the offense. ECF No. 7 at 6. He contends that, due to his age, 10 he was entitled to a youthful offender hearing to comply with the Eighth Amendment’s 11 prohibition against mandatory life without parole sentences for juvenile offenders. Id. The state 12 court of appeal rejected these arguments in his direct appeal: 13 Saterfield contends that because he was 21 years old when he committed the murders, the imposition of mandatory LWOP 14 sentences violated the Eighth Amendment to the United States Constitution, article I, section 17 of the California Constitution, and 15 equal protection principles. He did not raise these claims below, but the People agree that we should address them, and we agree 16 with the parties and reach the merits. Having done so, we reject the claims. 17 A. Youth Offender Parole Hearings under Section 3051 18 “Section 3051 affects three categories of lengthy sentences. A 19 defendant who commits his or her ‘controlling offense’ at age 25 or younger and who receives a long determinate sentence becomes 20 eligible for release on parole ‘during his or her 15th year of incarceration.’ (§ 3051, subd. (b)(1).) When the sentence for the 21 controlling offense is a life term of less than 25 years to life, the offender becomes eligible for parole during the 20th year of 22 incarceration. (§ 3051, subd. (b)(2).) And when the sentence for the controlling offense is 25 years to life, the offender becomes 23 eligible for parole during the 25th year of incarceration. (§ 3051, subd. (b)(3).) ‘“Controlling offense” means the offense or 24 enhancement for which any sentencing court imposed the longest term of imprisonment.’ (§ 3051, subd. (a)(2)(B).) . . . . 25 “Section 3051 has a carve-out, however . . . . Subdivision (h) of 26 section 3051 expressly excludes from eligibility for a youthful- offender parole hearing any inmate sentenced under the ‘Three 27 Strikes’ law, under the One Strike law, or to life without possibility of parole (LWOP) for an offense committed after the defendant 28 1 turned 18.” (People v. Edwards (2019) 34 Cal.App.5th 183, 194 (Edwards).) 2 B. The Eighth Amendment Claim 3 Saterfield contends that in light of section 3051, judicial 4 “prohibition of mandatory LWOP” to all defendants over 18 and younger than 26 “would be consistent with” the analysis in Miller v. 5 Alabama (2012) 567 U.S. 460, wherein the United States Supreme Court, building upon earlier cases, outlined a range of factors a 6 sentencing court should consider before ordering a juvenile to serve an LWOP term, consistent with the Eighth Amendment’s ban on 7 cruel and unusual punishment. 8 The most recent California case to consider whether a legal adult may successfully invoke Eighth Amendment sentencing law that 9 pertains to juveniles, ruled: “[A] defendant’s 18th birthday marks a bright line, and only for crimes committed before that date can he 10 or she take advantage of [that] jurisprudence in arguing cruel and unusual punishment.” (Edwards, supra, 34 Cal.App.5th at p. 190, 11 citing People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.) We agree. Therefore, because Saterfield was 21 years old when he 12 committed his crimes, we reject his invocation of the Miller line of cases to challenge his sentence. 13 . . . 14 D. The Equal Protection Claim 15 Saterfield contends that because he is “similarly situated 16 neurologically though not chronologically” to some teenaged juveniles, his exclusion from youth offender parole eligibility 17 violates equal protection principles. Citing People v. Olivas (1976) 17 Cal.3d 236, at page 251, Saterfield contends we must apply strict 18 scrutiny review to this claim, as “imprisonment is a deprivation of the fundamental interest in personal liberty.” We disagree and 19 apply rational basis review (People v. Wilkinson (2004) 33 Cal.4th 821, 837 [limiting Olivas, and holding that rational basis review 20 generally is applicable to equal protection challenges to penal statues]) to conclude that this claim lacks merit. 21 Both federal and state constitutional provisions protect the right to 22 equal protection of law. “‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state 23 has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial 24 inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of 25 the law challenged.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) 26 By its own terms, section 3051 excludes from relief nonjuvenile 27 LWOP offenders. Saterfield cannot show that he is similarly situated to juvenile LWOP offenders, since “children are 28 constitutionally different from adults for purposes of sentencing.” 1 (Miller v. Alabama, supra, 567 U.S. at p. 471.) Moreover, Saterfield cannot show that he is similarly situated to offenders who 2 commit their crimes when they were younger than 25 and were not sentenced to LWOP, since such offenders receive different 3 sentences because they have been convicted of different crimes. (People v. Macias (1982) 137 Cal.App.3d 465, 473 [“persons 4 convicted of different crimes are not similarly situated for equal protection purposes”]; see People v. Pecci (1999) 72 Cal.App.4th 5 1500, 1503 [“persons convicted of different offenses can be punished differently”].) His equal protection argument fails. 6 7 ECF No. 17-10 at 19-21. 8 Petitioner’s claim should be denied as meritless. First, to the extent petitioner argues that 9 the trial court misapplied state law, federal habeas relief is unavailable for errors of state law. 10 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas 11 corpus relief does not lie for errors of state law.” (citations and quotation marks omitted)). His 12 argument that the Eighth Amendment precludes his life without parole sentence also holds no 13 weight because the crimes he committed occurred when he was twenty-one years old, at which 14 time he was not a juvenile for Eighth Amendment purposes. See Miller v. Alabama, 567 U.S. 15 460, 479 (2012) (holding that a mandatory sentence of life without parole for defendants under 16 the age of eighteen at the time of the offense violates the Eighth Amendment). Finally, 17 petitioner’s contention that his sentence violates his right to equal protection is unsupported by 18 any factual or legal argument within the petition, and an unsupported contention is insufficient to 19 warrant habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding that 20 “conclusory allegations which are not supported by a statement of specific facts do not warrant 21 habeas relief”). 22 C. Prosecutorial Misconduct 23 Finally, petitioner argues that the state’s closing arguments rendered his trial 24 fundamentally unfair. ECF No. 9-10. He contends that the state improperly (1) encouraged the 25 jury to focus on passion and sympathy for the victims and their families; (2) urged the jury to find 26 petitioner guilty to send a message to the community; (3) misstated the reasonableness standard 27 for self-defense; and (4) diluted the reasonable doubt standard. Id. at 9. He contends that these 28 1 statements impacted the jury, rendering his trial fundamentally unfair. Id. at 9-10. The state 2 argues that all but one of petitioner’s prosecutorial misconduct claims are procedurally barred. 3 ECF No. 16 at 25-27. It contends that the state appellate court expressly determined that 4 petitioner forfeited all his prosecutorial misconduct claims except the claim related to the state’s 5 appeal to the jury’s passion and sympathy. Id. 6 The state appellate court ruled the following regarding petitioner’s prosecutorial 7 misconduct claims: 8 Saterfield contends the prosecutor committed multiple acts of misconduct in closing argument. The People contend all but one of 9 his arguments are forfeited. As we describe below, only one objection to the challenged argument was voiced by his counsel, 10 and although Saterfield argues that we should excuse this failure to object based on futility, we disagree. That one objection was 11 sustained, and although the trial court declined to “strike” the argument at issue, the court was not asked to admonish the jury 12 further and there is no indication that any further objections or properly made requests to admonish the jury would have been 13 futile. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the 14 same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the 15 impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) 16 However, because Saterfield argues that any failure to preserve a claim was ineffective assistance of trial counsel, we will address the 17 merits of any forfeited claims of prosecutorial misconduct under the rubric of ineffective assistance of counsel. 18 A. General Principles 19 “A prosecutor’s conduct violates the Fourteenth Amendment to the 20 federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a 21 prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the 22 use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly 23 pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a 24 reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. 25 Morales (2001) 25 Cal.4th 34, 44.) 26 “At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn 27 therefrom.” (People v. Morales, supra, 25 Cal.4th at p. 44.) “Within the scope of permissible prosecutorial argument, a 28 prosecutor is given wide latitude during argument ‘“‘“as long as it 1 amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .”’”’ 2 [Citation.]” (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1529.) 3 “[W]e must reject” an ineffective assistance claim on direct appeal 4 “‘“unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory 5 explanation.”’” (People v. Caro (2019) 7 Cal.5th 463, 488.) In the context of a failure to object to a prosecutor’s closing argument, 6 there are “‘many reasons’” why “‘[a]n attorney may choose not to object, . . . and the failure to object rarely establishes 7 ineffectiveness of counsel,’” (People v. Avena (1996) 13 Cal.4th 394, 420-421 (Avena)), as “[c]ounsel could reasonably have 8 decided it was better to let the comment[s] stand than risk irritating the jury by objecting” (People v. Anzalone (2006) 141 Cal.App.4th 9 380, 395 (Anzalone)). 10 B. Alleged Instances of Misconduct 11 1. Appealing to Passions and Sympathy 12 The prosecutor began his closing remarks by telling the jury: “If before this trial you were not the type of person that when you saw 13 on the news . . . some victim being . . . wounded or killed, if you weren’t the type of person that reflected on the real human cost that 14 that involves, you will be now. Unfortunately . . . you’ve learned what it looks like when people are gunned down. You’ve learned 15 what it looks like when two brothers, boys really, fifteen, nineteen, are killed. When a family loses two sons.” Hoang’s attorney 16 objected as “[a]ppealing to passion.” The trial court sustained the objection. Hoang’s attorney then said: “Move to strike.” The court 17 responded: “What attorneys say is not evidence, so there’s really nothing to strike.” 18 Saterfield contends that by refusing to strike the prosecutor’s 19 comment (and seemingly to admonish the jury, which we note the court was not asked to do), the trial court prejudicially failed to tell 20 the jurors “that they could not consider passion or sympathy,” and “made further objection to prevent the prejudice from repeated 21 misconduct futile.” The People argue the isolated remark by the prosecutor was not prejudicial, and we agree with the People on this 22 point. 23 The trial court sustained the objection, and though it did not specifically admonish the jury to disregard the challenged 24 statement, it did generally instruct the jury that the attorneys’ arguments were not evidence and also that the jury was to disregard 25 attempts to appeal to its sympathy. Further, the statement was isolated and not repeated. (See People v. Pensinger (1991) 52 26 Cal.3d 1210, 1250-1251 [rejecting a prejudicial error argument where the prosecutor appealed to the jury’s passion in closing 27 argument when the prosecutor said “‘suppose . . . this had happened to one of your children,’” defense counsel objected, and the trial 28 court sustained the objection but did not admonish the jury to 1 disregard the statement, as “the prosecutor’s comment was an isolated one and it was not repeated”].) 2 Saterfield points to two additional instances of alleged improper 3 argument, which were not objected to, under the same subheading. First, the prosecutor said: “You’ve seen the cost. And you will be 4 able to reflect in your mind that you sat on one of the most brazen, heinous, dangerous cases that could have possibly happened.” 5 Defendant contends this comment was “geared to incite sympathy and passion.” But the prosecutor’s characterization of the noontime 6 shooting in a commercial area populated by multiple bystanders as “brazen,” “heinous,” and “dangerous” was arguably fair comment 7 on the evidence. (See People v. Martinez (2010) 47 Cal.4th 911, 957 [“The prosecution’s description of [the victim] ‘suffering’ a 8 ‘savage beating’ and the comment about how it reflected defendant’s ‘violent capabilities’ were fair comments on the 9 evidence”]; People v. Young (2005) 34 Cal.4th 1149, 1195 [no misconduct where prosecutor characterized crimes as “‘serial 10 killing,’” and “‘terrorizing and killing’” people].) Any objection would have merely drawn attention to the argument, whether the 11 objection was sustained or not; refraining from objecting was arguably a reasonable tactical choice by counsel, particularly given 12 that the remarks were not obviously improper. (Avena, supra, 13 Cal.4th at pp. 420-421; Anzalone, supra, 141 Cal.App.4th at p. 13 395.) 14 Second, in rebuttal argument, the prosecutor took issue with defense counsels’ arguments that the jury should consider the 15 “cultural divide” when judging the reasonableness of defendants’ conduct. The prosecutor explained: “The argument they were 16 making is essentially that if you grow up in a bad neighborhood, if you grow up impoverished, if you grow up in those situations, 17 somehow we should expect you to be morally bankrupt”; and “[e]ssentially what they are saying is this is how you roll in the 18 hood. This is how it goes. You may not understand it, but this is the way it is. [¶] Well, my question to you, ladies and gentlemen, 19 the twelve of you, whose hood is this? And I’m talking about the courtroom. I’m talking about the City of Sacramento. . . . That’s 20 why we have these reasonableness standards in the law. [¶] . . . You guys get to say what is normal, acceptable, and reasonable.” 21 Defendant contends “[t]his was both an appeal to prejudice” and an 22 appeal to the jury to “‘protect community values’” as the “‘“conscience of the community.”’” First, the argument was 23 arguably proper. (See People v. Adanandus (2007) 157 Cal.App.4th 496, 511-513 [prosecutor’s argument that the jury 24 could restore law and order to the neighborhood was “an appeal for the jury to take its duty seriously, rather than efforts to incite the 25 jury against defendant,” and therefore not misconduct].) Second, as explained above, even if the comments were improper, refraining 26 from drawing attention to them by objecting was arguably a reasonable tactical choice by counsel. 27 28 1 2. Misstatement of the Law of Self-Defense 2 Defendant contends that the prosecutor misstated the law of self- defense by suggesting that defendant’s “understanding of the 3 situation” was irrelevant to the question of self-defense, as “only the jury’s own standards” were relevant. He points to two 4 statements to the jury by the prosecutor: that the jury was entitled “‘to say what is normal, acceptable and reasonable,’” and that the 5 jury “ha[d] to agree that what [Hoang] did was righteous in order to find that it’s reasonable.” Saterfield adds that the prosecutor’s 6 critique of defense counsel’s closing argument regarding a cultural divide exacerbated what he characterizes as a misrepresentation of 7 the law regarding reasonableness. 8 This claim fails for the same reasons explained above. Counsel reasonably could have decided it was better to let the comments 9 stand rather than draw more attention to them by objecting. (Avena, supra, 13 Cal.4th at pp. 420-421; Anzalone, supra, 141 Cal.App.4th 10 at p. 395.) 11 3. Misrepresentation of Burden of Proof and Reasonable Doubt Standard 12 Saterfield contends that the prosecutor incorrectly described the 13 standards that apply to self-defense and misstated his burden to show defendants did not act in self-defense when he told the jurors 14 to rely on their common sense and experience when deciding whether defendants reasonably believed they had to act in self- 15 defense, rather than considering the scenario from defendants’ perspectives. He cites as authority for that argument only a single 16 case that is not at all on point to his contention; we see no misconduct in arguing objective reasonableness. Where there is no 17 objectionable conduct by the prosecutor, there is no ineffective assistance by counsel’s failure to object. Further, we cannot see 18 how refraining from objecting to these closing comments could not be a reasonable tactical decision by counsel, considering the 19 instructions that the jury were given and counsel’s reliance on those to argue his case. The prosecutor’s comments, in the context of 20 argument that spans over 50 pages of reporter’s transcript, were not so offensive that trial counsel could not have made a reasonable 21 tactical decision to not emphasize them. (Cf. People v. Tully (2012) 54 Cal.4th 952, 1052 [“remarks occupy[ing] fewer than two pages 22 in an argument that spans over a hundred pages of reporter’s transcript” “were a minor point in an extensive argument”].) 23 Saterfield’s claim of prosecutorial misconduct fails, . . . 24 25 ECF No. 17-10 at 14-19. 26 Petitioner’s claims related to the state’s arguments urging the jury to find petitioner guilty 27 to send a message to the community, misstating the reasonableness standard for self-defense, and 28 1 diluting the reasonable doubt standard should be dismissed as procedurally defaulted, and 2 petitioner’s remaining claim regarding the state’s appeal to the jury’s passion and sympathy 3 should be denied. As a matter of comity, federal courts “will not review a question of federal law 4 decided by a state court if the decision of that court rests on a state law ground that is independent 5 of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 6 722, 729 (1991), superseded on other grounds by 28 U.S.C. § 2254(b) and overruled on other 7 grounds by Martinez v. Ryan, 566 U.S. 1 (2012). For a claim to be procedurally barred, the 8 petitioner must have actually violated a state procedural rule, see Wells v. Maass, 28 F.3d 1005, 9 1008 (9th Cir. 1994), and the highest state court to consider the claim must have actually relied on 10 the procedural default to deny the claim, see Harris v. Reed, 489 U.S. 255, 261-62 (1989); 11 Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000). 12 For a state procedural rule to be found “independent of the federal question,” Coleman, 13 501 U.S. at 729, the state law basis for the decision must not be interwoven with federal law, 14 Cooper v. Neven, 641 F.3d 322, 332 (9th Cir. 2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th 15 Cir. 2003); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be “adequate to support 16 the judgment,” Coleman, 501 U.S. at 729, the rule must be “firmly established and regularly 17 followed” at the time of the purported default, Beard v. Kindler, 558 U.S. 53, 60 (2009) (quoting 18 Lee v. Kemna, 534 U.S. 362, 376 (2002)); see Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 19 1997) (holding that the question of whether a state procedural bar is clear, consistently applied, 20 and well-established is determined as of the time the purported default occurred, not when a state 21 court applied the bar to a claim). 22 The state bears the initial burden of pleading the existence of an independent and adequate 23 state procedural ground. Williams v. Filson, 908 F.3d 546, 577 (9th Cir. 2018); Bennett, 322 F.3d 24 at 585-86. If the state makes this initial showing, the burden shifts to the petitioner to 25 demonstrate that the procedural ground is not adequate. Williams, 908 F.3d at 577. If the 26 petitioner makes such a showing, the burden shifts back to the state to make a showing in rebuttal. 27 Id. 28 1 A federal court may elect not to apply an otherwise-valid procedural bar in two narrow 2 circumstances: if the petitioner can demonstrate cause for the default and prejudice as a result of 3 the alleged violation of federal law, or if the petitioner can show that failure to consider the claim 4 will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Martinez, 5 566 U.S. at 9-10; Maples v. Thomas, 565 U.S. 266, 280 (2012). Ineffective assistance of counsel 6 may constitute cause for the federal court excusing an otherwise valid procedural default. See 7 Martinez, 566 U.S. at 9. 8 The record demonstrates that petitioner’s trial counsel failed to object to the state’s closing 9 arguments related to finding petitioner guilty to send a message to the community, misstating the 10 reasonableness standard for self-defense, and diluting the reasonable doubt standard. In his direct 11 appeal, petitioner attempted to challenge the state’s arguments on those points, acknowledging 12 that his trial counsel failed to object at trial, but arguing that the failure to object should be 13 excused due to ineffective assistance of counsel. ECF No. 17-10 at 14. However, before this 14 court, petitioner makes no such arguments. Petitioner only argues that the state’s closing 15 arguments were improper, and he acknowledges neither that his counsel did not object to these 16 instructions at trial nor the state appellate court’s forfeiture findings. See ECF No. 7 at 6, 9-10. 17 As such, petitioner has not overcome the procedural bar on this claim, and I decline to review the 18 claim’s merits regarding these specific state arguments. 19 To petitioner’s remaining preserved claim, such argument still fails. In reviewing a 20 prosecutorial misconduct claim, “[t]he relevant question is whether the prosecutor’s comments 21 ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” 22 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 23 637 (1974)). “To constitute a due process violation, the prosecutorial misconduct must be of 24 sufficient significance to result in the denial of the defendant’s right to a fair trial.” Greer v. 25 Miller, 483 U.S. 756, 765 (1987) (quotations omitted) (citing United States v. Bagley, 473 U.S. 26 667, 676 (1985)). “[T]he touchstone of due process analysis in cases of alleged prosecutorial 27 misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 28 1 455 U.S. 209, 219 (1982). “[I]t is not enough that the prosecutor’s remarks were undesirable or 2 even universally condemned.” Darden, 477 U.S. at 181 (quotations and citation omitted). 3 Petitioner’s contention that the state’s appeal to the jury’s passion and sympathy towards 4 the victims should fail because the state’s arguments did not infect the trial with unfairness to the 5 point that the petitioner’s conviction is the result of an unfair trial. See Greer, 483 U.S. at 765. 6 First, the jury was instructed that closing arguments were not evidence, and that they should 7 ignore appeals to sympathy—federal courts presume that the jury followed these instructions. 8 See Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000) (denying a petitioner’s prosecutorial 9 misconduct claim by noting that “the court instructed the jury that ‘[s]tatements made by the 10 attorneys during the trial are not evidence’ and that the jury ‘must not be influenced by mere . . . 11 sympathy [or] passion,’ and explaining that the court ‘presume[s] that the jury followed the 12 instructions.’”). Moreover, the evidence supporting petitioner’s conviction is strong, further 13 cutting against his argument. See id. at 713-14 (citing the strength of the evidence against 14 petitioner in denying his prosecutorial misconduct claim). Finally, the state’s comment was 15 isolated in context of the entirety of the trial. See Sassounian v. Roe, 230 F.3d 1097, 1107 (9th 16 Cir. 2000) (looking to the isolated nature of the state’s comments in denying petitioner’s 17 prosecutorial misconduct claim). Thus, the state appellate court’s resolution of this issue was not 18 contrary to, or an unreasonable application of, federal law, and petitioner’s challenge against the 19 state’s comments meant to appeal to the jury’s sympathy and passion should be denied. 20 Accordingly, it is hereby RECOMMENDED that: 21 1. The petition, ECF No. 7, be DENIED in part and DISMISSED in part; 22 2. The court decline to issue the certificate of appealability referenced in 28 U.S.C. 23 § 2253; and 24 3. The Clerk of Court be directed to close this case and to enter judgment accordingly. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 | objections shall be served and filed within fourteen days after service of the objections. The 3 | parties are advised that failure to file objections within the specified time may waive the right to 4 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 5 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED.

Dated: _ May 12, 2025 q——— 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE

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