Sean Patrick Ward v. Terry Goddard; Charles Ryan; Charles Ryan

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN PATRICK WARD,
Petitioner - Appellant,
v.
TERRY GODDARD; CHARLES RYAN;
CHARLES RYAN,
Respondents - Appellees.
No. 10-17481
D.C. No. 3:07-cv-00606-MHM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Mary H. MURGUIA, District Judge, Presiding
Argued and Submitted March 27, 2012
Tempe, Arizona
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Petitioner Sean Patrick Ward appeals the district court’s denial of his 28
U.S.C. § 2254 petition for habeas corpus. He raises one certified issue and several
uncertified issues.
FILED
JUL 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Ward argues first that the prosecutor made three remarks during closing
argument that constituted prosecutorial misconduct and resulted in a denial of due
process. We may not grant relief unless the state court’s decision “was contrary to,
or involved an unreasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d)(1). The state court’s decision was neither. The misconduct must
have “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)) (internal quotation marks
omitted). The first remark was merely a criticism of the defense strategy and an
admonition to consider all of the evidence, which is not improper. See United
States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense
theories and tactics is a proper subject of closing argument.”). The third remark
may have constituted improper vouching of the prosecutor for the strength of the
government’s case, see United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir.
1999), but any harmful effect was lessened by: the phrasing of the remark as a
submission for the jury’s consideration, see United States v. Weatherspoon, 410
F.3d 1142, 1147 n.3 (9th Cir. 2005); the discussion of the trial evidence in
connection with the remark, see United States v. Young, 470 U.S. 1, 19 (1985); and
the defense attorney’s own comments, see United States v. Robinson, 485 U.S. 25,

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32–33 (1988). The second remark may have been improper vouching and an
improper denigration of the defense. See Sanchez, 176 F.3d at 1224. But this stray
remark did not necessarily infect the trial with unfairness. See Duckett v. Godinez,
67 F.3d 734, 743 (9th Cir. 1995). At the very least, there is much room for
disagreement among fairminded jurists over whether it did, which prevents us from
granting habeas corpus relief. See Renico v. Lett, 130 S. Ct. 1855, 1864 (2010).
We find Ward’s arguments with regard to the uncertified issues to be
without merit, and we decline to certify them.
AFFIRMED.

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