Lionel Taplin v. A. K. Scribner

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
EG/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIONEL TAPLIN,
Petitioner - Appellant,
v.
A. K. SCRIBNER,
Respondent - Appellee.
No. 06-56316
D.C. No. CV-05-03095-AHM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
California state prisoner Lionel Taplin appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Taplin contends that statements made by the prosecutor in closing argument
violated his right to due process. First, Taplin argues that the prosecutor’s
arguments regarding the taped statement of Dexter Goodman constituted
misconduct. Even assuming that the prosecutor’s statements were improper,
Taplin has failed to establish that these statements “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 v. DeChristoforo, 416
U.S. 637, 643 (1974)). Given the weight of the evidence indicating that the drugs
seized in Taplin’s bedroom closet belonged to him, Goodman’s taped statement
that he was the owner of the drugs was insufficient to create reasonable doubt on
this point. Because Taplin cannot establish that the prosecutor’s statements “had
substantial and injurious effect or influence in determining the jury’s verdict,”
Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)), the district court did not err in denying this
claim.
Taplin also argues that the prosecutor’s statements regarding the
presumption of innocence constituted misconduct. The district court did not err in
determining that the prosecutor’s subsequent statements and the court’s
instructions to the jury were curative.

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Finally, Taplin contends that the prosecutor introduced evidence previously
excluded under Miranda, engaged in vouching, and argued that prosecution
experts were entitled to more credence than other witnesses. Because these claims
were not raised before the district court in the habeas petition, they are not
cognizable on appeal. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.
1994).
We deny Taplin’s request to expand the certificate of appealability to
include his claim that defense counsel was ineffective in failing to object to the
prosecutor’s statements. See 9th Cir. R. 22-1(e).
AFFIRMED.

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