Jared M. Villery v. KIM HOLLAND, Warden, Secretary of the California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JARED M. VILLERY,
Petitioner - Appellant,
v.
KIM HOLLAND, Warden, Secretary of
the California Department of Corrections,
Respondent - Appellee.
No. 12-57217
D.C. No. 2:09-cv-07496-GAF-
AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted April 6, 2015
Pasadena, California
Before: KLEINFELD, McKEOWN, and M. SMITH, Circuit Judges.
Jared Villery appeals from the district court’s order denying his petition for
review under 28 U.S.C. § 2254. After a jury trial, Villery and his co-defendant
were convicted of seven counts of false imprisonment, two counts of attempted
first degree robbery, and one count of first degree burglary for conduct arising out
FILED
JUN 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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of a home invasion. The jury acquitted Villery of four counts of kidnaping. Villery
was sentenced to 28 years, 4 months in prison. Villery appealed his sentence to the
California Court of Appeal, arguing that the prosecutor committed misconduct by
referring to the 9/11 attacks during closing arguments. The California Court of
Appeal found that the prosecutor’s actions constituted misconduct under California
law, but did not violate federal law because the conduct did not infect the trial with
such unfairness as to make Villery’s conviction a denial of due process. People v.
Zurinaga, 148 Cal. App. 4th 1248, 1258 (2007); Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974). The California Court of Appeal’s decision was neither
contrary to nor an unreasonable application of established federal law. We affirm
the denial of Villery’s § 2254 petition.
A petitioner’s application for a writ of habeas corpus will not be granted
unless the petitioner can demonstrate that the state court’s adjudication of the claim
resulted in a decision that was either contrary to, or involved an unreasonable
application of, clearly established Supreme Court precedent, or was based on an
unreasonable determination of the facts in light of evidence presented during the
sate court proceeding. 28 U.S.C. § 2254(d)(1), (2). The district court properly
denied Villery’s habeas petition because the California Court of Appeal’s decision
finding no constitutional error was not contrary to, or an unreasonable application
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of, the Supreme Court’s decision in Donnelly. “The relevant question is whether
the prosecutor’s comments ‘so infected 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, 416 U.S. at 643). A court should examine the
entirety of the proceedings in assessing whether a prosecutor’s comments violated
a petitioner’s due process rights. See id. Even where a prosecutor’s conduct
constitutes constitutional error, “the standard for determining whether habeas relief
must be granted is whether the . . . error had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993).
The California Court of Appeal reasonably determined that Villery was not
prejudiced by the prosecutor’s conduct because the evidence showed that
[e]leven individuals identified Petitioner as one of the perpetrators of
the crimes. The victims testified in detail as to the events. The crimes
were reported to the police soon after the robberies were complete.
The only contradictory evidence was Petitioner’s own story, which
was wholly uncorroborated. None of the individuals identified in
Petitioner’s version of events testified.
The jury took dispassionate care in assessing the evidence, as its split verdict
demonstrates. While the prosecutor’s actions constituted misconduct under
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California law, those actions did not deprive Villery of a fair trial, and therefore,
did not amount to a violation of due process.
In addition, the state court was not unreasonable in failing to apply the
standard announced in Chapman v. California, 386 U.S. 18, 23-24 (1967) for
constitutional trial error because it concluded that any error was non-constitutional.
Even if the misconduct were constitutional error, “[w]hen constitutional error in a
state-court trial is first recognized by a federal court,” the Brecht standard applies.
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). In other words, Villery must show that
the prosecutor’s arguments had a “substantial and injurious effect or influence in
determining the jury’s verdict” on this record. Brecht, 507 U.S. at 638; For the
reasons identified by both the California Court of Appeal and the district court,
Villery has failed to make such a showing.
AFFIRMED.
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