Howerton v. Carter

107 F. App'x 167

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2004
• Docket: No. 03-35824; D.C. No. CV-02-01414-RSL
• Status: Published

Opinion

MEMORANDUM

**

To warrant habeas relief, Howerton must show that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Howerton contends that the trial court erred by excluding a key witness’s prior inconsistent statements, which were offered for impeachment purposes. The Washington Court of Appeals decision is not contrary to, or an unreasonable application of, any of the Supreme Court cases he cites or any that we have found. Howerton’s counsel impeached the credibility of the witness with other questions, and the excluded testimony was inadmissible hearsay. Taylor v. Illinois, 484 U.S. 400, 410, 414—15, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

Howerton also argues that prosecutorial misconduct deprived him of a fair trial. The state court decision is not contrary to or an unreasonable application of Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), because the statements did not “ ‘infect[ ] the trial.’ ” Id. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The trial judge specifically instructed the jury not to rely upon the lawyers’ arguments when weighing the evidence and determining credibility. See Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987).

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.