Michael Demirdjian v. CONNIE GIPSON, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DEMIRDJIAN,
Petitioner-Appellant,
v.
CONNIE GIPSON, Warden,
Respondent-Appellee.
No. 09-56453
D.C. No.
2:04-cv-08245-GHK-JTL
OPINION
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted May 12, 2014
Pasadena, California
Filed August 10, 2016
Before: John T. Noonan, Jr., Kim McLane Wardlaw
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge Noonan

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DEMIRDJIAN V. GIPSON 2
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s judgment
dismissing California state prisoner Michael Demirdjian’s
habeas corpus petition challenging his conviction and
sentence for murdering two teenage boys with intent to inflict
torture, committed when Demirdjian was 15 years old.
Demirdjian claimed that his counsel was ineffective by
failing to challenge statements by the prosecutor as either
improper comments on Demirdjian’s decision not to testify,
in violation of Griffin v. California, 380 U.S. 609 (1965), or
improper shifting of the burden of proof to the defense.
Under the deferential standard required by AEDPA, the panel
concluded that there is a reasonable argument that, because
there was no prosecutorial error, defense counsel’s decision
to rebut the prosecution’s comments directly rather than
object at trial or on appeal was adequate, and that this strategy
did not undermine the reliability of Demirdjian’s conviction.
Demirdjian also claimed that his sentence of two
consecutive terms of 25 years to life violates the Eighth
Amendment under Miller v. Alabama, 132 S. Ct. 2455
(2012), because it is the “functional equivalent” of a
mandatory life-without-parole sentence and he was a juvenile
offender. Applying the deferential AEDPA standard, the
panel held that there is a reasonable argument that the
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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DEMIRDJIAN V. GIPSON 3
sentence is constitutional because it actually allows for the
possibility of parole.
Dissenting, Judge Noonan wrote that trial counsel’s
performance was constitutionally deficient because he failed
to object to the prosecution’s improper attempts at burden
shifting, multiple Griffin errors, and pleas to the jurors’
passions; that this deficient performance influenced the jury’s
verdict; and that no reasonable argument exists to the
contrary.
COUNSEL
Mark J. Geragos (argued), Geragos & Geragos, Los Angeles,
California, for Petition-Appellant.
Jason Tran (argued), Deputy Attorney General; Kenneth C.
Byrne, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Dane R. Gillette,
Chief Assistant Attorney General; Kamala D. Harris,
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.

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DEMIRDJIAN V. GIPSON 4
OPINION
FISHER, Circuit Judge:
Michael Demirdjian appeals the denial of his 28 U.S.C.
§ 2254 habeas petition. In 2001, he was convicted of
murdering two teenage boys with intent to inflict torture; he
was 15 years old at the time of the crimes. During closing
argument, the prosecution repeatedly commented on the
defense’s failure to explain key incriminating evidence or use
competent evidence to support its exculpatory theories.
Instead of objecting, defense counsel rebutted the comments
by giving non-incriminating explanations of the evidence and
reminding the jury the prosecution bore the burden of proof.
Demirdjian was later sentenced to two consecutive terms of
25 years to life.
In his habeas petition, Demirdjian claims his counsel was
ineffective by failing to challenge the prosecution’s
statements as either improper comments on Demirdjian’s
decision not to testify, in violation of Griffin v. California,
380 U.S. 609, 615 (1965), or improper shifting of the burden
of proof to the defense. He also claims his sentence violates
the Eighth Amendment because it is the “functional
equivalent” of a mandatory life-without-parole sentence, and
he was a juvenile offender. The district court denied habeas
relief on both claims.
We affirm under the deferential standard required by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Under AEDPA, the question is not whether we
think Demirdjian received ineffective assistance or an
unconstitutional sentence, but whether there is any reasonable
argument to the contrary. We conclude there is. First, there

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DEMIRDJIAN V. GIPSON 5
is a reasonable argument that, because there was no actual
prosecutorial error, defense counsel’s decision to rebut the
prosecution’s comments directly rather than object at trial or
on appeal was adequate, and this strategy did not undermine
the reliability of Demirdjian’s conviction. Second, there is a
reasonable argument Demirdjian’s sentence is constitutional
because it actually allows for the possibility of parole.
I. Background
On the evening of Saturday, July 22, 2000, petitioner
Michael Demirdjian, then 15, played basketball at a local
park with 13-year-old Chris McCulloch and 14-year-old
Blaine Talmo, Jr. Around 9:50 p.m., he left with the boys to
go to a nearby school. The next evening, McCulloch and
Talmo were found on a playground a few blocks away – dead
from multiple blunt force trauma. Next to Talmo’s battered
head, officers found a 16-pound rock stained with both
victims’ blood. A 12-foot bench weighing more than 60
pounds lay across McCulloch’s chest and neck. The right
front pocket of Talmo’s pants was pulled out, as if emptied.
A trail of bloody shoe prints indicated someone had walked
away from the scene to an outside sink stained with
McCulloch’s blood.
Police later found traces of McCulloch’s blood on
Demirdjian’s doorjamb. In Demirdjian’s trash were Talmo’s
alarm clock and wallet – with some of the contents burned –
and a pair of recently cleaned, but still bloody, sneakers. The
discarded sneakers matched the bloody shoe prints, two dogs
identified Demirdjian’s scent on the 16-pound rock, and
drops of Demirdjian’s blood were found at the crime scene.
Demirdjian had fresh cuts on his hands and knuckles and had
lied when asked by Talmo’s stepmother if he had seen Talmo.

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DEMIRDJIAN V. GIPSON 6
The state charged Demirdjian with two counts each of
robbery and murder, with special circumstances for multiple
murders, murder during a robbery and murder involving
torture.
Demirdjian was tried twice. At his first trial, he took the
stand and testified he had witnessed 19-year-old Adam
Walker, a well-known drug dealer, murder the boys, but had
not himself participated in the murders. That trial resulted in
a hung jury, deadlocked at 8–4 in favor of conviction after a
week of deliberations. At his second trial, Demirdjian did not
testify. The prosecution focused on the key physical evidence
tying Demirdjian to the crime scene and implying a guilty
mind. As to motive, the prosecution theorized Demirdjian
and his friend Damian Kim had wanted to “jack” McCulloch
and steal his money because, five days earlier, Walker had
pulled a “jack move” and stolen hundreds of dollars from
Demirdjian and Kim during a fake drug deal. The defense
challenged the reliability of some of the prosecution’s key
evidence, but focused primarily on introducing circumstantial
evidence that Adam Walker murdered the boys and had his
friends help clean up. Specifically, the defense emphasized
that Walker had scrapes and bruises on his body, and police
found at his friend’s home a washed rug, a blood stain
initially matching the stain on Demirdjian’s door (but later
found not to be a match) and – in the trash – some damp
clothes, gloves and a newspaper article about the crimes.
The first prosecutor to speak at closing, Barshop, noted
the prosecution’s burden of proof, but repeatedly called on
the defense to “explain” certain “unexplainable” evidence,
such as the discarded wallet and clock, the bloody shoe prints
and the blood stain at Demirdjian’s home. Defense counsel,
Mathews, responded with non-incriminating explanations of

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DEMIRDJIAN V. GIPSON 7
the evidence and stressed that the prosecution bore the burden
of proof. A second prosecutor, Do, spoke on rebuttal,
discrediting the defense’s explanations and theory about
Walker as not based on “reliable, competent evidence.”
Defense counsel did not object to any of the prosecutors’
statements. The court later instructed the jury that
Demirdjian had a constitutional right not to testify, the jury
could not discuss or draw any inferences from his silence and
the prosecution bore the burden of proof.
The jury deliberated for five days and convicted
Demirdjian of two counts of first-degree murder, with special
circumstances for multiple murders and intentional infliction
of torture. He was acquitted of robbery and special-
circumstance murder during a robbery and was sentenced to
two consecutive terms of life imprisonment without parole.
On appeal, Demirdjian’s counsel did not directly attack the
prosecution’s closing argument challenges to the defense on
key evidence, but did argue the jury had impermissibly
considered Demirdjian’s silence.
After exhausting his direct appeals, Demirdjian timely
filed a state habeas petition claiming, among other things,
ineffective assistance based on his counsel’s failure to
challenge the prosecution’s closing statements as either
violating Griffin or improperly shifting the burden of proof to
the defense. The trial court summarily denied the petition, as
did the California Court of Appeal, stating the petition “ha[d]
been read and considered.” The California Supreme Court
denied review.
While that petition was pending, the California Attorney
General informed the trial court that Demirdjian’s sentence
likely violated California law because he was only 15 years

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DEMIRDJIAN V. GIPSON 8
old at the time of the crimes. After a new sentencing hearing,
Demirdjian was resentenced to two consecutive terms of 25
years to life, making him eligible for parole after 50 years.
On appeal, he argued his new sentence violated the Eighth
Amendment because he was a juvenile offender. The
California Court of Appeal affirmed, reasoning that no
Supreme Court precedent barred his sentence, see People v.
Demirdjian, 50 Cal. Rptr. 3d 184, 187–88 (Ct. App. 2006),
and the California Supreme Court again denied review.
Demirdjian timely filed a federal habeas petition. After
the district court dismissed the petition, we granted a
certificate of appealability on two issues: whether
Demirdjian’s counsel was ineffective at trial and on appeal by
failing to raise a claim of prosecutorial misconduct for Griffin
error and improper burden shifting; and whether Demirdjian’s
sentence of two consecutive terms of 25 years to life
constitutes cruel and unusual punishment because he was a
minor at the time of the crimes. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we affirm.
II. Standard of Review
We review de novo a district court’s denial of a habeas
petition. See Murray v. Schriro, 745 F.3d 984, 996 (9th Cir.
2014). Our review is governed by AEDPA, which “bars
relitigation of any claim ‘adjudicated on the merits’ in state
court” unless the state court’s decision satisfies 28 U.S.C.
§ 2254(d)(1) or (2). Harrington v. Richter, 562 U.S. 86, 98
(2011) (quoting 28 U.S.C. § 2254(d)). AEDPA’s relitigation
bar applies to both Demirdjian’s summarily denied
ineffective assistance claim, see id. at 99–100, and his Eighth
Amendment claim, see id. at 98. The California Court of
Appeal’s decision on each claim is the “relevant state-court

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DEMIRDJIAN V. GIPSON 9
decision” for purposes of § 2254(d). Murray, 745 F.3d at
996. Accordingly, for each of Demirdjian’s claims, we
cannot grant habeas relief unless the California Court of
Appeal’s decision on that claim was “contrary to, or involved
an unreasonable application of” clearly established Supreme
Court authority. 28 U.S.C. § 2254(d)(1).1
This standard is “difficult to meet.” Richter, 562 U.S. at
102. We must “determine what arguments or theories
supported or” – for Demirdjian’s summarily denied
ineffective assistance claim – “could have supported the state
court’s decision” and “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.” Id. (emphasis added). We can grant
habeas relief only where the state court’s decision is “so
lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement.” Id. at 103.
It is “all the more difficult” to satisfy § 2254(d)(1) where,
as here, the petitioner raises an ineffective assistance claim.
Id. at 105. Even on de novo review, the standard for showing
ineffective assistance is “highly deferential.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). When we evaluate an
ineffective assistance claim under § 2254(d)(1), our review is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). If “there is any reasonable argument that counsel
satisfied Strickland’s deferential standard,” we must deny
habeas relief. Richter, 562 U.S. at 105.
1 Demirdjian’s argument that § 2254(d) does not apply to his summarily
denied ineffective assistance claim is precluded by Richter, 562 U.S. at
99–100. Because he does not contend he is entitled to relief under
§ 2254(d)(2), we consider only § 2254(d)(1).

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DEMIRDJIAN V. GIPSON 10
III. Ineffective Assistance Claim
Strickland provides the clearly established law governing
Demirdjian’s ineffective assistance claim. See Gentry v.
Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (evaluating an
ineffective assistance claim under AEDPA using Strickland’s
two-pronged test). In Strickland, the Supreme Court made
clear “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” 466 U.S. at 686. The Court then established a two-
pronged test for meeting that standard: an individual must
show “counsel’s performance was deficient” and “the
deficient performance prejudiced the defense.” Id. at 687.
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). We hold
there is a reasonable argument Demirdjian has failed to do so
here.
A. Deficient Performance
We first consider whether the California Court of Appeal
reasonably could have concluded defense counsel’s
performance was not deficient. Under Strickland’s first
prong, an attorney’s representation is deficient if it “fell
below an objective standard of reasonableness,” as seen
“from counsel’s perspective at the time.” 466 U.S. at 688,
689. Because “it is all too easy” for courts to second guess
errors in hindsight, id. at 689, Strickland mandates a “strong
presumption” that counsel acted “for tactical reasons rather
than through sheer neglect,” Yarborough v. Gentry, 540 U.S.
1, 8 (2003) (per curiam). To overcome this strong
presumption, Demirdjian must show counsel’s errors were

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DEMIRDJIAN V. GIPSON 11
“so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687.
Demirdjian contends his counsel performed deficiently at
trial and on appeal by failing to challenge some of the
statements the prosecution made at closing. Before we can
assess that performance, though, we must determine “whether
the prosecutor’s remarks constituted objectionable
misconduct.” Zapata v. Vasquez, 788 F.3d 1106, 1112 (9th
Cir. 2015). In making that determination, we are mindful that
“an unreasonable application of federal law is different from
an incorrect application of federal law.” Williams v. Taylor,
529 U.S. 362, 410 (2000). AEDPA thus prohibits us from
treating a prosecutorial statement as error if “there is any
reasonable argument” to the contrary. Richter, 562 U.S. at
105.2 Because there is a reasonable argument none of the
statements was error, we hold the California Court of Appeal
reasonably could have concluded counsel’s performance was
not deficient.
2 The parties dispute which law governs that inquiry. Demirdjian
assumes we should apply our own precedents on Griffin and burden
shifting, whereas the state argues only clearly established Supreme Court
authority is relevant, see Holley v. Yarborough, 568 F.3d 1091, 1101 (9th
Cir. 2009) (“In cases where the Supreme Court has not adequately
addressed a claim, this court cannot use its own precedent to find a state
court ruling unreasonable.”). We do not decide the issue because
Demirdjian would not prevail on this prong even under our own
precedents. Assuming our case law on Griffin and burden shifting applies,
we ask whether Demirdjian has proven prosecutorial error “beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

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DEMIRDJIAN V. GIPSON 12
1. Alleged Griffin Errors
Demirdjian has not shown the prosecution committed
Griffin error beyond any possibility for fairminded
disagreement. Griffin prohibits “comment by the prosecution
on the accused’s silence.” 380 U.S. at 615. We have
distinguished, however, between permissible “comments
about the lack of explanation provided by the defense” and
impermissible “comments about the lack of explanation
furnished by the defendant.” United States v. Mayans,
17 F.3d 1174, 1185 (9th Cir. 1994). A prosecutor’s remark
thus can “call attention to the defendant’s failure to present
exculpatory evidence,” id., so long as it is not “of such a
character that the jury would naturally and necessarily take it
to be a comment on the failure to testify,” Lincoln v. Sunn,
807 F.2d 805, 809 (9th Cir. 1987).
The nearly two dozen Griffin errors alleged here fall into
three main groups. The first group, by far the largest, consists
of statements asking defense counsel Mathews to explain
certain “unexplainable” evidence. These statements followed
the same pattern. The first prosecutor, Barshop, highlighted
a piece of incriminating evidence – the cuts on Demirdjian’s
hands, the bloody shoe prints that matched the blood-stained
sneakers in Demirdjian’s trash, the stain of McCulloch’s
blood on Demirdjian’s doorjamb and the discarded wallet and
clock – and offered the prosecution’s explanation. Barshop
then expressly asked defense counsel – not Demirdjian – to
“explain” the evidence in a non-incriminating way.3 Defense
3 For example, after reasoning Demirdjian’s cuts must have come from
handling the 16-pound rock found at the crime scene, Barshop said:

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DEMIRDJIAN V. GIPSON 13
counsel Mathews responded on rebuttal by offering non-
incriminating explanations of this evidence. The second
prosecutor, Do, then criticized the defense’s explanations as
not based on “reliable, competent evidence.”4
So I say to you, Mr. Mathews, explain it. What is
the explanation for this other than mine? What is the
evidence that is offered other than ours? Where did
these injuries on the Defendant’s hands come from? . . .
. . . .
If you are in a fight or if you are delivering a blow,
where are there injuries? To the knuckles. . . . Is there
any other explanation? Is there any other valid, viable
explanation? I think not. That’s what the testimony
is. . . .
. . . How big do you have to be to pick up a big ass
rock? 16-pound rock. . . . It’s where you cut your
hands. How big do you have to be to hit somebody in
the face? You cut your knuckle. You cannot explain
the unexplainable. It’s not possible.
(Emphasis added.)
4 Do said about Demirdjian’s cuts, for example:
[Demirdjian’s] hands were cut and bruised. How does
Mr. Mathews explain that?
Mr. Barshop asked, “explain it with competent,
reliable, admissible evidence.” How does Mr. Mathews
explain it? Well, Michael Demirdjian was playing
basketball. You know how kids are. They get cuts.
. . . But you’re not getting cut and bleeding at a
crime scene where there are two victims of a double

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DEMIRDJIAN V. GIPSON 14
There is a reasonable argument none of these remarks
violated Griffin. No statement directly “comment[ed] . . . on
[Demirjian]’s silence.” Griffin, 380 U.S. at 615. And we
have upheld similar comments as merely calling attention to
the defense’s failure to explain incriminating evidence or
introduce exculpatory evidence. See, e.g., Mayans, 17 F.3d
at 1179, 1186 (“[T]here is no evidence to contradict [the
incriminatory nature of the defendant’s interaction].”); United
States v. Sehnal, 930 F.2d 1420, 1423, 1425 (9th Cir. 1991)
(“[A]sk [defense counsel] if he’s explaining to you why it is
that none of these monies found their way into the corporate
bank account.”); United States v. Wasserteil, 641 F.2d 704,
709 (9th Cir. 1981) (“I asked all the defendants . . . to please
explain to you how this legitimate business transaction
worked . . . . Did you hear an explanation from them?”).
The dissent argues these statements were nevertheless
Griffin error because Demirdjian was the “sole person who
could provide information” on the prosecution’s questions.
Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir. 2010). As
defense counsel’s rebuttal arguments demonstrated, however,
Demirdjian was not necessarily the only source of explanation
available to the defense.5 Regardless, such comments are
homicide. That’s not a good explanation; not based on
reliable, competent evidence.
(Emphasis added.)
5 On rebuttal, Mathews countered the prosecution’s evidence in the
absence of Demirdjian’s testimony. As Mathews explained, the shoe
prints merely confirmed what the jury already knew: that Demirdjian was
at the crime scene. There was not “even one syllable of medical or
scientific evidence” that Demirdjian’s cuts came from handling a rock, he
added, and they were too healed to have come from the time of the

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DEMIRDJIAN V. GIPSON 15
impermissible only where there are “very clear signals that
the defendant himself, rather than the defense generally, was
being discussed.” Mayans, 17 F.3d at 1185; see Sehnal,
930 F.2d at 1424 (prosecutor improperly used the rhetorical
tag “ask him” to refer to the defendant); Lincoln, 807 F.2d at
809 & n.1 (prosecutor improperly said the defendant was the
“only . . . person who can tell us”); United States v. Sigal,
572 F.2d 1320, 1322–23 & n.1 (9th Cir. 1978) (prosecutor
improperly said “the defendants did not deny” heading up
part of the conspiracy). Here, the prosecutors’ focus on the
defense’s failure to introduce “competent, admissible
evidence” arguably was not a very clear signal that
Demirdjian was being discussed. See, e.g., Rhoades,
598 F.3d at 511 (holding that the statement, “If there was
evidence out there that would disassociate this gun from [the
defendant], we’d have heard it,” was not Griffin error because
a “natural reading” was “there was no meaningful challenge
to the government’s evidence”).
The second group of statements came from Do’s rebuttal
closing, where she commented on evidence indicating
Demirdjian had a guilty mind. Do asked counsel to explain
why the contents of Talmo’s wallet were burned and why
Demirdjian had lied to Talmo’s stepmother about whether he
had seen Talmo:
murders. Defense counsel further reasoned the blood stain on
Demirdjian’s doorjamb must have been planted by the police because
McCulloch’s blood was not found anywhere else in Demirdjian’s home
and the prosecution had previously “influence[d] the evidence.” And he
argued the wallet and clock could not have been taken from Talmo’s body
because there were no fingerprints or blood on them.

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DEMIRDJIAN V. GIPSON 16
What Mr. Mathews has given is
alternative facts. . . .
How does he explain the fact that the
contents [of Talmo’s wallet] are burned, and
ripped-out, and thrown out with his bloody
shoes? He hasn’t. . . . Has he given you any
explanation for why Michael Demirdjian is
destroying evidence? Any explanation for
why Michael Demirdjian is concealing
evidence?
. . . .
Now, Mr. Mathews wants you to believe
that there’s no way Michael Demirdjian
would harm these two boys because they’re
his friends. Just think about it. . . .
[Demirdjian] looks at [Talmo’s stepmother]
and he tells her, “I don’t know where they are.
I haven’t seen them. I’m expecting a phone
call.”
How do you explain that? He certainly
was not Chris McCulloch and Blaine Talmo’s
friends [sic].
(Emphasis added.) Although on de novo review this would
be a closer case, there is at least a reasonable argument these
statements merely commented on the defense’s “failure to
present exculpatory evidence.” Mayans, 17 F.3d at 1185.
Again, none directly “comment[ed] . . . on the accused’s
silence.” Griffin, 380 U.S. at 615. The first statement, which

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DEMIRDJIAN V. GIPSON 17
Do expressly addressed to defense counsel, arguably did not
contain “very clear signals” she was referring to Demirdjian
in particular. Mayans, 17 F.3d at 1185. At one point, Do
used the pronoun “he” to refer to both Mathews and
Demirdjian, but the referents are clear enough from context
that the comment need not have “naturally and necessarily”
called for an explanation from Demirdjian himself. Lincoln,
807 F.2d at 809 (emphasis added). For the other two
statements, Do was not necessarily asking the jury to “treat
the defendant’s silence as substantive evidence of guilt,”
United States v. Robinson, 485 U.S. 25, 32 (1988) (quoting
Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)), but could
have been permissibly using his earlier lies to discredit the
theory that he was friends with the victims.6
In the final group of statements, Do directly addressed the
defense’s theory that Adam Walker was the murderer. At
trial, defense counsel had presented only circumstantial
evidence to show Walker was the murderer. During closing,
however, Mathews suggested one of Walker’s friends, Greg
Furnish, had seen Walker at the crime scene: “There was one
witness to the murders,” Mathews told the jury, “and it was
not Michael Demirdjian.”7 Mathews also twice suggested
6 Demirdjian points to Barshop’s invitation to determine “[w]hat’s going
on in Michael Demirdjian’s mind,” given that his computer had material
on “[k]illing somebody with a big ass rock.” There is a reasonable
argument this invitation, too, did not comment on Demirdjian’s silence,
but merely pointed out that the jury needed to determine Demirdjian’s
mental state.
7 Defense counsel never elicited this testimony from Furnish, who was
a witness for the prosecution. On cross-examination, Furnish testified that
Walker had been partying with him all night on the night of the murders,
and that “Adam Walker had nothing to do with this murder.”

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DEMIRDJIAN V. GIPSON 18
Demirdjian “saw Adam Walker” at the crime scene – the
second time over the prosecution’s objection. Though
recognizing defense counsel’s remarks were “error,” the trial
court ruled that, to avoid any Griffin error in response, the
prosecution could not “comment” on what Demirdjian saw,
but was “free to comment on” how the defense’s theory lay
“outside any evidence that has been received in this trial.”
On rebuttal, Prosecutor Do told the jury, “You’ve heard no
testimony, no evidence from this witness stand, that puts
Adam Walker at that crime scene.” And a few times she
called the defense’s theory “smoke and mirrors” or “a bunch
of smoke screens to hide Michael Demirdjian.”
Do’s first statement was troublesome, but arguably
permissible in context. Consistent with the trial court’s
ruling, Do ostensibly highlighted the problems with the
defense’s circumstantial evidence before concluding there
was “no testimony, no evidence” actually placing Walker at
the crime scene. Because she never singled out Demirdjian
as a possible witness – and there was another possible witness
in Furnish – her remarks arguably constituted “legitimate
comment . . . on the weaknesses in the defense case.”
Robinson, 485 U.S. at 32 (internal quotation marks omitted);
see Mayans, 17 F.3d at 1179, 1186 (upholding statement that
“there is no evidence to contradict [the prosecution’s theory]”
given “there [wa]s nothing to single out the defendant from
his case in general”). Do’s “smoke and mirrors” comments,
too, arguably were “directed to ‘the strength of the defense on
the merits’” and thus were not an impermissible “ad hominem
attack on defense counsel.” United States v. Ruiz, 710 F.3d
1077, 1086 (9th Cir. 2013) (quoting United States v. Nobari,
574 F.3d 1065, 1079 (9th Cir. 2009)). As Do explained, she
was highlighting “each and every area Mr. Mathews has
raised that I believe are smoke and mirrors to trick you into

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DEMIRDJIAN V. GIPSON 19
believing there’s something there that really isn’t.” See
United States v. Del Toro-Barboza, 673 F.3d 1136, 1150–51
(9th Cir. 2012) (noting that similar remarks in another case
only “may have crossed the line”).8
The dissent assumes the prosecution’s remarks, taken
together, necessarily commented on Demirdjian’s silence.
Dissent at 40–41. We agree the prosecution’s statements
were aggressive, and some were close enough to crossing the
line that, on de novo review, they would present a closer case.
But “AEDPA demands more.” Richter, 562 U.S. at 102. No
statement directly called attention to Demirdjian’s failure to
testify; and each statement, whether in isolation or in
conjunction with others, reasonably could be understood as
calling attention to the defense’s failure to present
exculpatory evidence. Because we cannot say any statement
violated Griffin “beyond any possibility for fairminded
disagreement,” id. at 103, the California Court of Appeal
reasonably could have concluded there were no Griffin errors.
2. Alleged Burden Shifting
Demirdjian has not shown the prosecution clearly shifted
the burden of proof to the defense. Barshop began his
argument by emphasizing the jury must “decide the case
based on the facts that you analyze,” and characterizing
counsel’s presentation of the defense as “attack[ing]”
8 Demirdjian further argues the prosecution’s remarks violated Griffin
because two jurors later said they “should have heard from Michael
Demirdjian.” But the jurors’ comments arguably indicated only that the
jury might have interpreted the remarks in a way that would constitute
Griffin error, not that it “naturally and necessarily” did so. Rhoades,
598 F.3d at 510.

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DEMIRDJIAN V. GIPSON 20
Talmo’s stepmother, “infer[ring]” the facts were
“compromised” because Talmo’s father was a deputy sheriff
and claiming Demirdjian’s race was the “reason” for the first-
degree murder charge. “In the bottom of the line,” he said:
[I]t is always easier to attack a case than to
defend it. And it is clear that the People have
the burden of proof, and that will be an
instruction that you receive.
But attack the case with real evidence,
with competent evidence, not meanness, not
nastiness.
(Emphasis added.) Asserting that “the evidence supports a
theory that clearly the defendant is a perpetrator,” Barshop
then asked defense counsel, “What is the evidence that is
offered other than ours?” with respect to Demirdjian’s cuts,
and invited counsel to explain the blood on the doorjamb
“[b]y competent, admissible evidence. . . . Not by way of
hypothesis, not by way of attorney spin, but by evidence
admissible in a court of law.” Do echoed Barshop’s
argument during rebuttal, saying, “The evidence is what
comes off this witness stand, not what from the attorneys say
or spin.” She also twice quoted Barshop’s refrain in rebutting
counsel’s explanations of the blood stains and Demirdjian’s
cuts, each time arguing Mathews had not explained the
evidence with “competent, reliable, admissible evidence.”
Demirdjian contends these statements impermissibly
implied he had a duty or burden to produce evidence. But we
rejected a similar burden-shifting claim under a plain-error
standard in United States v. Vaandering, 50 F.3d 696 (9th Cir.
1995), where the prosecution repeatedly told the jury there

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DEMIRDJIAN V. GIPSON 21
was “no evidence” the defendant, who had been charged with
distributing methamphetamine, had ever had a job aside from
drug dealing. Id. at 701–02 (citing United States v. Mares,
940 F.2d 455, 461 (9th Cir. 1991)). We reasoned such
“comment on [the defendant’s] failure to present exculpatory
evidence” was permissible because it did not “expressly or
implicitly shift[] the burden of proof,” and the prosecutor
“expressly told the jury the burden of proof was on the
government.” Id. at 702.
Here, too, Barshop told the jury the prosecution “clear[ly]
. . . ha[s] the burden of proof”; no statement expressly shifted
that burden, and arguably none implicitly shifted that burden
either. The jury reasonably could have inferred that – in
context – each repetition of Barshop’s refrain was intended,
like his original statement, merely as comment on the
defense’s trial tactics and weaknesses in the defense’s theory
of the case. Cf. United States v. Tucker, 641 F.3d 1110, 1122
(9th Cir. 2011) (“While the prosecutor’s phrasing was
inartful, his meaning is evident from context: to believe the
defendant’s account, the jury would have to believe
implausible aspects of his testimony. This sort of
argumentation is permissible.”). We agree with Demirdjian
that it is problematic the prosecution referred to its burden
only once. But we acknowledge, as we must under AEDPA,
that a fairminded jurist nevertheless could conclude the
repetition of “competent, reliable, admissible evidence”
merely highlighted that the defense had challenged the
prosecution’s case with innuendo and accusation, not
exculpatory evidence.
The dissent contends the prosecutors’ statements
“impermissibly crossed the line” by arguing the defense had
failed to counter the prosecution’s theory. Dissent at 40.

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DEMIRDJIAN V. GIPSON 22
That distinction made no difference in Vaandering, however,
where we upheld the prosecution’s statement that “[t]here is
no evidence . . . [the defendant] ever had a job other than
dealing drugs.” 50 F.3d at 701. Even the dissent’s sole
authority on this point held that “brief comments . . . noting
the absence of evidence contradicting what was produced by
the prosecution on several points . . . . did [not] impermissibly
shift the burden of proof to defendant.” People v. Bradford,
939 P.2d 259, 322–23 (Cal. 1997); see also People v. Woods,
53 Cal. Rptr. 3d 7, 11 (Ct. App. 2006) (“Comments on the . . .
defense’s failure to call logical witnesses, introduce material
evidence, or rebut the People’s case are generally
permissible.” (emphasis added)). The California Court of
Appeal reasonably could have concluded there was no
burden-shifting.
3. Alleged Appeals to the Jury’s Passions
The dissent asserts defense counsel performed deficiently
by failing to object to the prosecution’s various “appeals to
jurors’ emotions” during closing. Dissent at 41–42. We do
not reach these additional statements because they are not
properly before us. Demirdjian mentions only the
prosecution’s reference to “[t]errorism against the state” –
and even then only as evidence of prejudice, not deficient
performance. Demirdjian failed to raise the remaining
statements before the California Supreme Court and the
district court, and does not dispute that those statements are
therefore forfeited, see Miles v. Ryan, 713 F.3d 477, 494 n.19
(9th Cir. 2013), and unexhausted, see 28 U.S.C. § 2254(b)
(requiring habeas petitioners to exhaust their claims in state
court); Gentry v. Sinclair, 705 F.3d 884, 901 (9th Cir. 2013)
(“Exhaustion requires a statement of the ‘operative facts’ that
support the federal legal theory giving rise to the claim.”).

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DEMIRDJIAN V. GIPSON 23
4. Counsel’s Performance at Trial and on Appeal
Defense counsel Mathews did not object to any of the
statements we have been discussing. In assessing his
performance, we begin with the “strong presumption” that he
did not object “for tactical reasons.” Yarborough, 540 U.S.
at 8. Although Demirdjian has not provided a declaration
from Mathews to show his actual reasons for not objecting,
the record suggests Mathews made a strategic decision not to
object and instead to address the prosecution’s comments
through his rebuttal. During rebuttal, counsel repeatedly said
Barshop had “invited me” or “challenged me” – not the
defendant – to explain the evidence. He then gave an
exculpatory explanation for each “unexplainable” fact, and
stressed – three times – that the prosecution bore the burden
of proof. To demonstrate the prosecution had failed to meet
its burden, Mathews criticized the prosecution’s failure to
offer a coherent motive, catalogued how the investigation had
been “botched” and challenged the prosecution to “explain”
evidence that he said “proves conclusively that Adam Walker
did this crime.” And he reminded the jury that it would be
instructed to disregard the prosecution’s “opening appeals to
passion, prejudice, and sympathy.”
The California Court of Appeal thus reasonably could
have presumed that counsel made a strategic decision to
address the prosecution’s comments directly instead of
objecting. We cannot say that such a strategic decision would
have been objectively unreasonable beyond any possibility
for fairminded disagreement. We have repeatedly held that,
“absent egregious misstatements,” failing to object to error
during closing argument falls within the “‘wide range’” of
reasonable assistance. Cunningham v. Wong, 704 F.3d 1143,
1159 (9th Cir. 2013) (quoting United States v. Necoechea,

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DEMIRDJIAN V. GIPSON 24
986 F.2d 1273, 1281 (9th Cir. 1993)); see also Zapata v.
Vasquez, 788 F.3d 1106, 1116 (9th Cir. 2015) (holding that
“patent, inflammatory and repeated misconduct” was
“egregious”). Arguably none of the statements here was error
– let alone egregious error. In these circumstances, the state
court could have concluded Mathews reasonably thought any
objection would be “meritless,” Juan H. v. Allen, 408 F.3d
1262, 1273 (9th Cir. 2005), or decided not to object “to avoid
highlighting [the statements],” Cunningham, 704 F.3d at
1159. Because Mathews directly responded to the
prosecution’s comments, and those comments arguably were
not “patent, inflammatory and repeated,” the state court was
not required to conclude he performed deficiently by failing
to object. Zapata, 788 F.3d at 1116.
The dissent disagrees based on its assumption that the
prosecution’s statements were, in fact, “egregious,” Dissent
at 42–44, but the California Court of Appeal was not required
to make that assumption. To be sure, Mathews could have
developed a record for appeal or tried to curtail the
prosecution’s repetition by objecting to some of the
statements. But he also “could have legitimately thought that
an objection would have served only to draw further attention
to the damaging statement while clearly not erasing its effect
from the jurors’ minds.” United States v. Eaglin, 571 F.2d
1069, 1087 (9th Cir. 1977). Strickland simply does not allow
us to “second-guess” Mathews’ decision with the benefit of
hindsight. 466 U.S. at 689. Under AEDPA, we must “afford
‘both the state court and the defense attorney the benefit of
the doubt.’” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016)
(per curiam) (quoting Burt v. Titlow, 134 S. Ct. 10, 13
(2013)).

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DEMIRDJIAN V. GIPSON 25
As to the competence of Mathews on appeal, because a
fairminded jurist could conclude counsel was not deficient at
trial, she “could certainly conclude that the [state] court was
not objectively unreasonable in deciding that appellate
counsel was not incompetent.” Id. at 1153; see Turner v.
Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (“A failure to
raise untenable issues on appeal does not fall below the
Strickland standard.”). Mathews focused the appeal on
challenging what he argued was the “only link” allowing the
jury to find Demirdjian had participated in the murders: the
dog scent identifications. Counsel also raised five other
claims of prosecutorial misconduct, including one for
implying during closing argument that Demirdjian was a
“terrorist against the government.” Although counsel did not
separately challenge the prosecution’s statements on the
“unexplainable” evidence, he addressed them indirectly
through a jury misconduct claim alleging the jury
impermissibly considered Demirdjian’s silence during its
deliberations. There is a reasonable argument Mathews’
failure to raise additional claims in this context was not “so
serious” an error that he “was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687.
Defense counsel no doubt could have done more to
address the prosecution’s aggressive line of argument, or
made a better record by objecting to some of the statements.
But, given that the prosecution’s argument did not
unquestionably cross the line, Demirdjian’s present claim
entails precisely the kind of “second-guess[ing]” of counsel’s
strategy that Strickland prohibits. 466 U.S. at 689. We
therefore hold the California Court of Appeal reasonably
could have concluded defense counsel’s failure to object fell
within Strickland’s “wide range” of reasonable assistance. Id.

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DEMIRDJIAN V. GIPSON 26
B. Prejudice
Even if Demirdjian’s counsel had performed deficiently,
he would not be entitled to habeas relief if the California
Court of Appeal reasonably could have concluded he failed
to establish prejudice. Under Strickland’s second prong, an
individual must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 694. A “reasonable
probability” is one “sufficient to undermine confidence in the
outcome.” Id. That requires a “substantial, not just
conceivable” likelihood of a different result. Richter,
562 U.S. at 112 (citing Strickland, 466 U.S. at 693).
Demirdjian argues there was a substantial likelihood of a
different result because the evidence against him was weak,
two jurors were actually prejudiced and the prosecution
stressed an inference of guilt from his silence. We hold the
California Court of Appeal reasonably could have concluded
otherwise.
Demirdjian first argues the evidence against him was
weak and thus indicative of prejudice. See Strickland,
466 U.S. 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.”).
Although we agree the evidence of motive was weak, that
arguably could not have affected the verdict. The jury was
instructed that the prosecution need not prove motive and that
the jury could – but need not – consider a lack of motive as a
“circumstance” that might “tend to show” Demirdjian was not
guilty. Moreover, Talmo’s wallet and clock were in
Demirdjian’s trash, as were the burnt contents of the wallet
and a pair of recently cleaned, blood-stained sneakers. No
evidence negated this probative evidence of a guilty mind.

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DEMIRDJIAN V. GIPSON 27
Defense counsel also acknowledged Demirdjian had been at
the crime scene, and there was significant physical evidence
that reliably tied him to the murders. Drops of his blood were
next to the shoe prints leading away from the victims’ bodies;
his sneakers matched the shoe prints; and two different dogs
identified his scent on the 16-pound rock. Demirdjian does
not contest the reliability of the drops of blood and shoe
prints, and there is a reasonable argument his challenges to
the scent identifications did not undermine that evidence
either.9
Accordingly, a fairminded jurist could conclude the
evidence convincingly established (a) Demirdjian was at the
crime scene, (b) handled the 16-pound rock, then (c) walked
away bleeding and (d) went to a sink before returning home,
where he (e) cleaned then discarded his sneakers and
(f) discarded and burned some of Talmo’s property.
Although the defense offered non-incriminating explanations
of some of this evidence, those explanations were arguably
9 Demirdjian faults the first scent identification because, on her first
attempt, the dog went past his home and lost the trail. But on that same
attempt, the dog had reliably tracked the scent from the rock to
Demirdjian’s own shoe prints, then to the sink and onto the road where
Demirdjian lived. As the dog handler explained, the dog may have gone
past Demirdjian’s home merely because she had picked up another trail he
had left. Demirdjian “discredit[s]” the second identification because the
second dog also identified the scents of two other individuals whom the
defense asserted were in Palm Springs at the time of the crimes. But the
prosecution used cell phone records and an eyewitness identification to
place both individuals at the crime scene. A fairminded jurist thus could
conclude neither scent identification was unreliable.

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DEMIRDJIAN V. GIPSON 28
implausible.10 It therefore would have been reasonable to
conclude Demirdjian did not establish prejudice based on the
evidence against him. See Richter, 562 U.S. at 112 (“[i]t was
also reasonable to find Richter had not established prejudice
given that he offered no evidence directly challenging other
conclusions reached by the prosecution’s experts” that
supported only the prosecution’s theory of the crime scene).
Demirdjian next argues there was actual prejudice
because one juror told a reporter, “I thought we should have
heard from Michael Demirdjian,” and another reportedly was
“persuaded to change her vote from not guilty to guilty . . .
because of [Demirdjian’s] failure to testify.” But there is no
evidence the jury ever discussed Demirdjian’s silence; on the
contrary, the first juror explained the “big factors” that
weighed most heavily in the jury’s decision were the shoe
prints and Demirdjian’s blood at the crime scene – not his
silence. There were arguably other indications that the jury
did not struggle to determine his guilt. On the fourth day of
deliberations, the jury asked the court if Demirdjian could be
guilty of special-circumstance murder as an aider and abettor,
or if he had to be the “actual perpetrator.” Mere hours after
the court answered that he could be convicted as an aider and
abettor, the jury convicted him. Based on the timing and
substance of this colloquoy, a fairminded jurist could
10 For example, defense counsel argued Demirdjian’s shoe prints were
at the scene because “[i]f you had seen what Michael Demirdjian saw in
your stupor, you’d get out of dodge too.” That explanation, however,
arguably was inconsistent with the actual shoe prints, which indicated
Demirdjian had walked away from the crime scene. Counsel now argues
Demirdjian “checked to see if [Talmo] and [McCulloch] were alive.” But
that argument, too, does not explain why he simply walked away after
purportedly seeing his friends brutally murdered.

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DEMIRDJIAN V. GIPSON 29
conclude the key question for the jury was not whether but
how Demirdjian had participated in the murders.11
Regardless, there is a reasonable argument the jury
instructions mitigated any prejudice. The jury was informed
of the prosecution’s burden four times – once by the
prosecution, and three times by the defense. The court
likewise instructed the jury the prosecution had “the burden
of proving [Demirdjian] guilty beyond a reasonable doubt,”
and the jury was not to discuss or “draw any inference from
the fact that [he] d[id] not testify.” Because “[j]urors are
presumed to follow the court’s instructions,” it would have
been “reasonable for the state court to conclude that the
prosecutor’s remarks . . . were not prejudicial.” Cheney v.
Washington, 614 F.3d 987, 997 (9th Cir. 2010); see
Cunningham, 704 F.3d at 1159 (holding there was no
prejudice where the “comments were a single paragraph of a
twenty-page argument and the trial judge explained to the
jury that closing arguments are not evidence”).
Demirdjian finally argues there was prejudice because the
prosecution stressed an inference of guilt from his silence.
But this rationale turns on whether any statement was itself
error. As we have seen, it would have been reasonable to
conclude that there were no errors and that the prosecution
11 We generally treat the “difficult time the jury had reaching a
unanimous verdict” as an “indicator of prejudice,” Stankewitz v. Wong,
698 F.3d 1163, 1175 (9th Cir. 2012). We do not accord this factor great
weight here, though, because there is a reasonable argument the jury’s
conduct was “not an unambiguous sign it was a close case.” Walker v.
Martel, 709 F.3d 925, 943 (9th Cir. 2013). Based on the timing of the
questions and the quick turn-around after the response, the jury could have
been exercising “diligence and care” in deciding Demirdjian’s role in the
murders. Id.

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DEMIRDJIAN V. GIPSON 30
never actually asked the jury to infer guilt from Demirdjian’s
silence. See Beardslee v. Woodford, 358 F.3d 560, 587 (9th
Cir. 2004) (holding that “clearly not extensive” Griffin errors
were not prejudicial under an analogous standard where the
prosecution implied, but did not stress, that the defendant’s
silence meant a lack of remorse).
The “ultimate focus” of the Strickland inquiry is on
whether “the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process.” 466 U.S.
at 696. Although aspects of Demirdjian’s trial give us pause,
we cannot say all fairminded jurists would find the result
unreliable. Given both the strength of the incriminating
evidence and the jury instructions, we hold the California
Court of Appeal reasonably could have concluded there was
no prejudice from counsel’s failure to object to the
prosecution’s statements.
IV. Eighth Amendment Claim
Demirdjian contends his sentence of two consecutive
terms of 25 years to life violates the Eighth Amendment
because he was a juvenile at the time of his crimes. This
claim relies solely on the retroactive application of Miller v.
Alabama, 132 S. Ct. 2455 (2012), which held “a sentencing
scheme that mandates life in prison without possibility of
parole for juvenile offenders” violates the Eighth
Amendment. Id. at 2469. Demirdjian argues he is entitled to
habeas relief because his sentence is the “functional
equivalent” of the mandatory life-without-parole sentences
overturned in Miller. We disagree. Although it is now
established that Miller applies retroactively, see Montgomery
v. Louisiana, 136 S. Ct. 718, 736 (2016), Demirdjian still
must show Miller’s legal principles were “clearly

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DEMIRDJIAN V. GIPSON 31
established” at the time of the California Court of Appeal’s
decision (six years before Miller) and this decision was
“contrary to” Miller for purposes of § 2254(d)(1).12
Demirdjian has not attempted to satisfy the first requirement;
and we hold he has not satisfied the second.
Miller’s prohibition of mandatory life-without-parole
sentences for juvenile offenders rested in part on the premise
that “a distinctive set of legal rules” applies to a life-without-
parole term for juveniles. 132 S. Ct. at 2466. Because such
a term is the “ultimate penalty for juveniles . . . akin to the
death penalty,” id., it “demand[s] individualized sentencing,”
including consideration of the juvenile’s age and the
circumstances of the crime, id. at 2467. Miller noted,
however, that “no other sentences” “share [these]
characteristics with death sentences.” Id. at 2466 (quoting
Graham v. Florida, 560 U.S. 48, 69 (2010)). There is a
reasonable argument that Miller thus applies only to life-
without-parole sentences.
Demirdjian concedes he has not received a life-without-
parole sentence, but contends Miller nevertheless applies
because his sentence is the “functional equivalent” of life
without parole. The Supreme Court, however, has held an
12 Teague v. Lane, 489 U.S. 288, 306–10 (1989), generally bars
retroactive application of new constitutional rules of criminal procedure
on collateral review. Teague’s retroactivity rule, however, is “quite
separate from the relitigation bar imposed by AEDPA.” Greene v. Fisher,
132 S. Ct. 38, 44 (2011). Even if applying a rule retroactively “would
comport with Teague,” we still must ask whether “doing so would
contravene section 2254(d)(1),” Meras v. Sisto, 676 F.3d 1184, 1188 (9th
Cir. 2012), by granting relief based on federal law not clearly established
“as of the time the state court render[ed] its decision,” Greene, 132 S. Ct.
at 44 (internal quotation marks omitted).

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DEMIRDJIAN V. GIPSON 32
identical sentence was not controlled by federal precedent
involving a life-without-parole sentence. See Lockyer v.
Andrade, 538 U.S. 63, 73–74 (2003). Lockyer reasoned a
sentence of two consecutive terms of 25 years to life was
“materially []distinguishable” from a life-without-parole term
because the petitioner actually “retain[ed] the possibility of
parole,” id. at 74, albeit when he was 87 years old, see id. at
79 (Souter, J., dissenting). So too here: because Demirdjian
will be eligible for parole when he is 66 years old, his
sentence arguably does not “share [any] characteristics with
death sentences,” Miller, 132 S. Ct. at 2466 (quoting Graham,
560 U.S. at 69), and thus does not necessarily trigger Miller’s
requirements.13
Because fairminded jurists could disagree with
Demirdjian that Miller’s requirements applied to his sentence,
we hold he is not entitled to habeas relief on his Eighth
Amendment claim.
13 As the state notes, a recently enacted California statute entitles
Demirdjian to “a meaningful opportunity to obtain release[]” at a hearing
“during the 25th year of [his] incarceration” – when he is 41 years old.
Cal. Penal Code § 3051(b)(3), (e). Because this new authority would not
change our holding, we neither rely on it nor decide whether 28 U.S.C.
§ 2254(d)(1) permits us to do so. Cf. Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (holding that “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the
merits”). Our holding, however, does not foreclose Demirdjian’s
eligibility for a parole hearing after 25 years, or sooner, whether under
California law or the California Supreme Court’s interpretation of federal
law.

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DEMIRDJIAN V. GIPSON 33
CONCLUSION
The judgment of the district court dismissing
Demirdjian’s habeas petition is AFFIRMED.
NOONAN, Circuit Judge, dissenting:
“Difficult” is the term chosen by the Supreme Court to
characterize the process of a federal court reviewing a state
criminal conviction under AEDPA. “Difficult” is not the
same as “impossible.” The Supreme Court has not cut off our
review of state criminal convictions. Nor has Congress
eliminated our review.
We are not engaged in an illusory examination of the
proceedings that have taken place. We may not reverse the
state court if “any theories or arguments could have
supported” the state court’s denial of relief. Harrington v.
Richter, 562 U.S. 86, 102 (2011). We are, therefore, bound
to consider not only the actual reasoning of the state court,
but the broader range of reasons that could support the result
reached by that court. “Difficult,” not impossible.
The standard set by the Supreme Court makes the test
objective. The standard is not the subjective state of mind of
the actual state judge but the objective test of what a properly
functioning state judge would have done.
Under California law, a prosecutor of murder need not
prove motive. People v. Solomon, 234 P.3d 501, 520 (Cal.
2010). But, the prosecutor must either prove intent or a
conscious disregard for human life. See People v. Lasko,

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DEMIRDJIAN V. GIPSON 34
999 P.2d 666, 668 (Cal. 2000). When the prosecutor attempts
to prove motive and fails to do so, the lack of intent is drawn
into question. Here, no motive for the defendant to kill was
shown. What intent was shown?
* * *
Michael Demirdjian was convicted at age fifteen of the
brutal murders of thirteen-year-old Chris McCulloch and
fourteen-year-old Blaine Talmo, Jr. The evidence against
Demirdjian was so weak that his first trial ended with a hung
jury. At his second trial, it took a jury five days to convict
him. The prosecution’s stated motive for Demirdjian to have
committed the murders—a transferred desire for revenge—
was risible. In fact, the evidence clearly pointed to a
nineteen-year-old drug dealer with a burning need for cash as
the killer. Yet fifteen years later, in spite of the prosecution’s
promise to the jury that other individuals who had
participated in the killings would be brought to justice,
Demirdjian is the only person to have been charged with and
punished for the killings.
Had Demirdjian been convicted as the result of a fair trial,
we would be obligated to overlook these problems. But his
conviction was not the result of a fair trial. During closing
argument, Demirdjian’s attorney, Charles Mathews, sat
silently while the prosecution repeatedly shifted the burden of
proof onto the defense, referred to the fact that Demirdjian
did not testify, and raised with the jury the specter of the 9/11
attacks and the Columbine mass murders. Demirdjian was
effectively without the assistance of counsel while the
prosecution made impermissible argument after
impermissible argument. Due to this lack of effective

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DEMIRDJIAN V. GIPSON 35
counsel, Demirdjian’s petition for habeas relief should be
granted.
I
On Sunday, July 23, 2000, the bodies of Chris
McCulloch, age thirteen, and Blaine Talmo, Jr., age fourteen,
were found on an elementary school playground in La
Crescenta, California. Both boys had died of multiple blunt
force trauma. Next to Talmo’s body, officers found a sixteen-
pound rock stained with the blood of both of the victims. A
twelve-by-ten-foot bench, weighing more than sixty pounds,
lay across McCulloch’s chest and neck.
The previous day, fifteen-year-old Michael Demirdjian
had been playing basketball at the school with the two boys.
There was physical evidence tying Demirdjian to the crime
scene, including blood samples, a shoe print, and positive dog
scent identifications. Demirdjian’s first trial ended in a
mistrial because the jury remained deadlocked following a
week of deliberations. Eight jurors voted to convict, four to
acquit. Demirdjian testified.
Jury selection for Demirdjian’s second trial began the day
before the terrorist attacks of September 11, 2001. Trial
commenced six days later. The prosecution theorized that
Demirdjian had committed the murders out of revenge
because one of the victims had introduced him to Adam
Walker, a nineteen-year-old drug dealer who subsequently
stole hundreds of dollars from Demirdjian in a drug deal gone
sour. According to the prosecution, Demirdjian spent a week
unsuccessfully trying to ambush Walker to recover his money
and exact revenge from him. The prosecution said that
Demirdjian’s chosen weapons were “beebee guns and knife,

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DEMIRDJIAN V. GIPSON 36
simulated weapons.” But then, according to the prosecution,
Demirdjian decided to rob and beat to death his two friends
because they were young and “vulnerable.” He allegedly
used his fists, a rock, and a park bench.
The defense acknowledged that Demirdjian was at the
crime scene and witnessed the murders. It maintained that he
did not participate in them in any way. Instead, the defense
argued that Walker had killed the teens in a drug-induced fit
of rage because he needed their money to pay a debt.
Demirdjian did not testify.
On November 1, 2001, after five days of deliberations, the
jury convicted Demirdjian on two counts of first-degree
murder. However, the jury acquitted him of the two robbery
counts, rejecting the prosecution’s primary theory that
Demirdjian had conspired to commit robbery, resulting in
felony murder.
II
We review de novo a district court’s denial of a petition
for a writ of habeas corpus. Stanley v. Schriro, 598 F.3d 612,
617 (9th Cir. 2010). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) prohibits our granting relief
unless the state court’s “adjudicat[ion] on the merits . . .
resulted in a decision that 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).
Because no California court has provided a reasoned
decision on Demirdjian’s claim of ineffective assistance of
counsel (“IAC”), we must determine whether any theories or

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DEMIRDJIAN V. GIPSON 37
arguments “could have supported” the state court’s denial of
relief. Harrington, 562 U.S. at 102. If so, we “must 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.” Id.
Trial counsel’s failure to object to remarks made by the
prosecution in closing argument and rebuttal may serve as the
basis for an IAC claim. Zapata v. Vasquez, 788 F.3d 1106,
1112 (9th Cir. 2015); Trillo v. Biter, 769 F.3d 995, 1002 (9th
Cir. 2014). The Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides the clearly
established federal law under which IAC claims arise. To
prevail under Strickland, a defendant must show (1) that his
counsel’s performance was deficient and (2) that he was
prejudiced by that deficient performance. Id. at 687. Based
on analysis of Strickland’s deficient performance and
prejudice prongs, I conclude that Demirdjian’s counsel was
constitutionally ineffective and that no reasonable argument
exists to the contrary. Under the stringent standards
established by AEDPA, habeas relief is appropriate.
III
Under the first prong of Strickland, “the proper measure
of attorney performance [is] simply reasonableness under
prevailing professional norms.” Wiggins v. Smith, 539 U.S.
510, 521 (2003) (quotation marks omitted). In evaluating
reasonableness, we ask whether counsel could have had a
tactical or strategic purpose guiding her conduct. See
Strickland, 466 U.S. at 689–91.

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DEMIRDJIAN V. GIPSON 38
A.
Clearly established federal law as determined by the
Supreme Court forbids attempts by the prosecution in a
criminal case to shift the burden of proof of any elements of
the crime to the defendant. In re Winship, 397 U.S. 358
(1970). The state bears the duty to establish guilt beyond a
reasonable doubt. Id. at 362. In violation of this basic rule,
the prosecution repeatedly indicated to the jury that
Demirdjian bore the burden of providing evidence of his
innocence.
At the outset of its closing argument, the prosecution told
the jury it was going to “explain the theory of the prosecution
and relation of the facts to the law.” The prosecutor then told
the jury that “it is always easier to attack a case than to
defend it. And it is clear that the People have the burden of
proof, and that will be an instruction that you receive. But
attack the case with real evidence, with competent evidence,
not meanness, not nastiness.”
Having framed for the jury an approach in which the
defense was required to produce “real” and “competent”
evidence, the prosecution then repeatedly called on the
defense to present “real evidence” during the remainder of its
initial closing argument. After detailing for the jury evidence
of multiple lacerations on Demirdjian’s hands, the prosecutor
demanded the defense produce evidence to refute that the
lacerations were caused by using a rock to beat the two
victims: “So I say to you, Mr. Mathews, explain it. What is
the explanation for this other than mine? What is the
evidence that is offered other than ours.” After discussing
the blood stain evidence, the prosecution demanded the
defense produce evidence to prove the blood stains did not

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DEMIRDJIAN V. GIPSON 39
link Demirdjian to the murders: “So, Mr. Mathews, please
explain to us, if you can, if you will, the unexplainable, which
is how did Chris McCulloch’s blood get on the doorjamb. By
competent, admissible evidence. Not by way of hypothesis,
not by way of attorney spin, but by evidence admissible in a
court of law.”
In spite of these clear and repeated suggestions by the
prosecution that the defense was required to provide
“competent, admissible evidence,” Mathews never once
objected during the prosecution’s initial closing argument.
Following defense counsel’s closing remarks, the prosecution
in its rebuttal immediately repeated its framing of the
approach it had urged on the jury: “I’m going to revisit all the
questions that Mr. Barshop posed to Mr. Mathews, and I’m
going to ask you whether they were answered. . . . I think that
you’ll find that most of the questions, if any at all, were not
answered.” After commenting on the prosecution’s evidence
(cuts and bruises on Demirdjian’s hands) and permissibly
asking a rhetorical question—“How does Mr. Mathews
explain that?”—the prosecution repeated its impermissible
demand: “Explain it with competent, reliable, admissible
evidence.” It again repeated this demand while criticizing
Mathews’s explanation: “That’s not a good explanation; not
based on reliable, competent evidence.” And immediately
repeated again: “[Mr. Mathews] has not explained it with
competent, reliable, admissible evidence.”
Nearing the end of its rebuttal, the prosecution continued
to impermissibly catalogue the failures of the defense to
explain the state’s evidence, arguing the defense had
produced no “competent, reliable, admissible evidence.”

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DEMIRDJIAN V. GIPSON 40
The prosecution may permissibly comment on the
defense’s failure to provide evidence to support its version of
the story. People v. Bradford, 939 P.2d 259, 323 (Cal. 1997).
Here, the prosecution impermissibly crossed the line, arguing
the defense had provided no evidence to refute the
prosecution’s story. In doing so, the prosecution implicitly
told the jury that Demirdjian bore the duty to establish his
innocence beyond a reasonable doubt. The trial court silently
acquiesced in these statements. The demand that Demirdjian
prove his innocence violated Demirdjian’s due process right
“against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. at 364.
B.
Demirdjian’s attorney remained silent while the
prosecution repeatedly commented on the fact that at his
second trial Demirdjian did not testify. Griffin v. California,
380 U.S. 609 (1965), prohibits a prosecutor from commenting
on a defendant’s decision not to testify. Such “comment is
unacceptable ‘if it is manifestly intended to call attention to
the [defendant’s] failure to testify, or is of such a character
that the jury would naturally and necessarily take it to be a
comment on the failure to testify.’” Rhoades v. Henry,
598 F.3d 495, 510 (9th Cir. 2010) (quoting Lincoln v. Sunn,
807 F.2d 805, 809 (9th Cir. 1987)).
Comment is also unacceptable “if the defendant is the
sole person who could provide information on a particular
issue.” Id.; see also Griffin, 380 U.S. at 614–15 (forbidding
prosecutorial comment where an “inference of guilt” arises
out of an accused’s “failure to testify as to facts peculiarly
within [his] knowledge”).

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DEMIRDJIAN V. GIPSON 41
Regarding the defense’s theory that Demirdjian had
injured his hands while playing basketball, the prosecutor
commented:
So I say to you, Mr. Mathews, explain it. . . .
Where did these injuries on the defendant’s
hands come from?
Later, the prosecution asked:
So, Mr. Mathews . . . how did Chris
McCulloch’s blood get on [Demirdjian’s]
doorjamb? By competent, admissible
evidence. Explain it to us. Not by way of
hypothesis, not by way of attorney spin, but
by evidence admissible in a court of law.
And still later:
Then [Demirdjian] lied to [Talmo’s
stepmother]. Have you heard an explanation
for that?
Only Demirdjian could have supplied the answers to these
questions. This line of questioning necessarily called
attention to his decision not to testify. There can be “no
fairminded disagreement” that such pervasive commentary
violated Griffin. White v. Woodall, 134 S. Ct. 1697, 1706
(2014) (internal quotation marks omitted).
C.
Trial counsel’s failure to object when the prosecution
sought to capitalize on the public hysteria that followed the

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DEMIRDJIAN V. GIPSON 42
terrorist attacks of September 11, 2001, which had taken
place less than a week before trial, only strengthens the
conclusion that he was constitutionally ineffective. For
instance, the prosecution emphasized that these murders were
an act of “evil” and that “evil has no age barriers, no
nationality barriers, nor boundaries.” The prosecution also
linked Demirdjian’s alleged crime to “[t]errorism against the
state,” referenced the “World Trade Center attack,” and
reminded the jury of “Columbine” when asking rhetorically
whether “kids kill kids.” These appeals to jurors’ emotions
were clearly improper. See United States v. Weatherspoon,
410 F.3d 1142, 1149 (9th Cir. 2005) (condemning
“prosecutorial statements designed to appeal to the passions,
fears and vulnerabilities of the jury”). Again, Demirdjian’s
attorney raised no objections.
D.
There were several bases for trial counsel to object. The
question remains whether Mathews’s failure to do so fell
“within the wide range of reasonable professional assistance
[that] might be considered sound trial strategy.” Tilcock v.
Budge, 538 F.3d 1138, 1146 (9th Cir. 2008).
“Absent egregious misstatements” by the prosecution,
defense counsel’s failure to object during closing argument is
typically considered “a reasonable strategic decision” that
falls within the “wide range of permissible professional legal
conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th
Cir. 2013). Here, the prosecution’s clear and repeated
statements that the defense was required to provide
“competent, admissible evidence” were “egregious
misstatements.” These misstatements went beyond
misstating facts—they instructed the jury to require that

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DEMIRDJIAN V. GIPSON 43
Demirdjian provide evidence to counter the prosecution’s
case. The prosecution first framed for the jury an analytical
approach that required the defense to “attack the case with
real evidence, with competent evidence.” Mathews’s failure
to object, and the court’s silent acquiescence in the
prosecution’s demand, said one thing to the jury: You may
find the defendant guilty if he did not provide evidence to
refute the prosecution’s case.
Defense attorneys may refrain from objecting for a wide
variety of reasons, including a desire to avoid calling
attention to unfavorable facts. See id. (“[Defense counsel’s]
decision not to object to [the prosecutor’s] comments,
possibly to avoid highlighting them, was a reasonable
strategic decision.”). No reasonable jurist could conclude that
counsel’s failure to object to clear instructions by the
prosecution to the jury that shifted the burden of proof onto
the defense falls within the “wide range of professional legal
conduct.” To be sure, withholding objection might be a
reasonable strategy in the context of isolated errors or
otherwise harmless commentary. See id. Here, however, it
would have been readily apparent to any reasonable counsel
after the first several burden-shifting statements that such
improper commentary would not cease and, as a result, would
be highly prejudicial to the client.
Similarly, Demirdjian’s counsel sat through the
prosecution’s repeated Griffin violations yet failed to object
despite numerous opportunities to do so. While in some
cases we have recognized the strategic value in forgoing
objection during opposing counsel’s closing argument, such
a tactic would have been unreasonable here after the
prosecution’s first several requests for information
exclusively within Demirdjian’s knowledge, and grossly

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DEMIRDJIAN V. GIPSON 44
unreasonable upon counsel’s discovery that the prosecution’s
strategy in its closing arguments was apparently to underscore
Demirdjian’s decision not to testify. See id. Yet defense
counsel said not a word.
Defense counsel’s failure to respond to the prosecution’s
statements was not a strategic decision taken to avoid
highlighting unfavorable facts. The failure to object
permitted the prosecution to lower its burden of proof by
shifting the burden onto the defense, highlighted
Demirdjian’s choice not to testify, and allowed the
prosecution to pander to the jury’s heightened sensibilities.
No possible defense strategy could explain these failures.
IV
We may not grant habeas relief unless counsel’s failure
satisfies Strickland’s second prong, such that the
prosecution’s comments resulted in prejudice to the
defendant. Zapata, 788 F.3d at 1116–17. Under Strickland,
“the likelihood of a different result [absent counsel’s deficient
performance] must be substantial, not just conceivable.”
Richter, 562 U.S. at 112. On habeas review, the question is
whether it would have been unreasonable for a state court to
have concluded “[the defense’s] evidence of prejudice fell
short of this standard.” Id.
“[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.” Strickland, 466 U.S. at
696. Considering “the totality of the evidence,” id. at 695,
absent counsel’s ineffective performance, there is a
reasonable probability that at least one juror would have
resisted a guilty verdict, just as four jurors did in

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DEMIRDJIAN V. GIPSON 45
Demirdjian’s first trial. See Vega v. Ryan, 757 F.3d 960, 974
(9th Cir. 2014) (finding Strickland prejudice because of “a
reasonable probability that at least one juror would have
struck a different balance” (citation and quotation marks
omitted)).
This is not a case where the evidence of the defendant’s
guilt was otherwise overwhelming. The most significant
weakness in the prosecution’s case was its inability to
establish a plausible motive. The prosecution permissibly
asked the jury to apply its common sense as it analyzed the
case, yet the prosecution’s theory of Demirdjian’s motive
defied any reasonable application of common sense.
According to the prosecution, Demirdjian and Damian Kim,
angered by being robbed in a drug deal by nineteen-year-old
Adam Walker, spent a week unsuccessfully trying to ambush
Walker to recover their money and exact revenge. Their
chosen weapons: “beebee guns and knife, simulated
weapons.” But then, according to the prosecution, when
Demirdjian’s attempts to ambush Walker failed, he decided
to turn on his own friends, Chris McCulloch and Blaine
Talmo, in an attempt to rob them of $200. During the course
of this robbery, the prosecution alleged, Demirdjian beat the
two boys to death. Demirdjian supposedly put aside the
beebee guns and knife and simulated weapons, and instead
used his fists and a rock and a park bench to bludgeon Chris
and Blaine, simply because they were younger and more
vulnerable. It is no small wonder the prosecution repeatedly
emphasized that it was not required to prove motive to the
jury.
Several problems with the physical evidence linking
Demirdjian to the murders also highlight the weakness of the
prosecution’s case. It was only after several inconclusive

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DEMIRDJIAN V. GIPSON 46
attempts and a tip from Blaine Talmo’s stepmother that the
officers connected Demirdjian to the crime using dog scent
evidence. Ultimately, however, the defense’s expert
discredited this evidence as likely having been influenced by
the dog handlers’ own methodological errors. What is more,
the defense identified deficiencies in the State’s initial DNA
testing, which failed to implicate Demirdjian at all.
Finally, the jury heard evidence implicating Walker as the
murderer, consistent with the defense’s narrative. Blood was
found on Walker’s shoes and he had scrapes on his hands,
arms, and back, and bruises on his leg. Incriminating
evidence was found at Walker’s residence, including washed
rugs, damp and discolored clothes, gloves, a hand towel, and
a newspaper article about the crimes. Evidence also
suggested that Walker had told his friend about the murders
several hours before the police discovered the victims’
bodies.
No reasonable jurist could dispute the substantial
weaknesses in the prosecution’s case. These weaknesses
explain the jury’s difficulty in reaching a verdict at both of
Demirdjian’s trials. As a result, there is a reasonable
probability that trial counsel’s failure to object to the
prosecution’s highly improper attempts at burden shifting,
multiple Griffin errors, and pleas to the jurors’ passions
influenced the jury’s verdict. Fairminded jurists could not
disagree.
* * *
I would reverse the district court’s denial of Demirdjian’s
habeas petition and remand with instructions to grant a writ
requiring the State to release him from custody unless it

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DEMIRDJIAN V. GIPSON 47
initiates new trial proceedings within a reasonable period of
time as determined by the district court.

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