Jamal Smith v. LARRY SMALL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAL SMITH,
Petitioner - Appellant,
v.
LARRY SMALL, Warden,
Respondent - Appellee.
No. 11-57054
D.C. No. 2:08-cv-08066-PA-RCF
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 5, 2014 **
Pasadena, California
Before: BYBEE and IKUTA, Circuit Judges, and ZILLY, Senior District Judge. ***
Jamal Smith appeals the district court’s denial of his petition for a writ of
habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
MAR 19 2014
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.

-- 1 of 3 --

The California Court of Appeal determined that Smith’s rights under
Miranda v. Arizona, 384 U.S. 436 (1966), were violated when the trial court
admitted Smith’s statement to the police denying knowledge of how his
fingerprints appeared on the duct tape found on the victim’s body. This
determination was not an unreasonable application of Supreme Court precedent.
See Byrd v. Lewis, 566 F.3d 855, 861–62 (9th Cir. 2009). Nevertheless, this
Miranda violation did not “ha[ve] substantial and injurious effect or influence in
determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(internal quotation marks omitted), in light of the overwhelming evidence of
Smith’s guilt, including the facts that only Smith’s fingerprints were found on the
duct tape that caused the victim’s asphyxiation and that there was evidence that
Smith had left the fingerprints when applying the duct tape. Given the
overwhelming evidence of guilt, the prosecutor’s repetition of Smith’s statement
did not substantially sway the jury’s verdict. Cf. Hurd v. Terhune, 619 F.3d 1080,
1090–91 (9th Cir. 2010). Accordingly, we conclude that the Miranda error was
harmless.
The California Court of Appeal’s determination that the prosecutor did not
violate Smith’s due process rights when the prosecutor discussed his out-of-court
conversation with the state’s fingerprint expert was not contrary to, or an
2

-- 2 of 3 --

unreasonable application of Darden v. Wainwright, 477 U.S. 168 (1986). The
prosecutor’s comments “did not manipulate or misstate the evidence” and the trial
court instructed the jury that its “decision was to be made on the basis of the
evidence alone, and that the arguments of counsel were not evidence.” Id. at 182.
Nor was the California Supreme Court’s rejection of Smith’s Confrontation Clause
claim contrary to, or an unreasonable application of clearly established Supreme
Court precedent, because no Supreme Court case holds that a prosecutor’s
introduction of hearsay during closing arguments renders the prosecutor a witness
subject to cross examination. See 28 U.S.C. § 2254(d)(1).
AFFIRMED.
3

-- 3 of 3 --