Mitchell Tatmon v. JOHN W. HAVILAND, Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL TATMON,
Petitioner - Appellant,
v.
JOHN W. HAVILAND, Warden,
Respondent - Appellee.
No. 11-16671
D.C. No. 3:09-cv-00094-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted January 15, 2013**
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Defendant Mitchell Tatmon appeals from the district court’s denial of his
habeas corpus petition, in which he argued that the prosecutor committed
prosecutorial misconduct by stating three times in his opening argument that he
FILED
JAN 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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could talk about “only one” prior criminal incident. The facts of the case are
known to the parties. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
we affirm.
We review a district court’s denial of a habeas petition de novo, under the
standards set forth in AEDPA. Tak Sun Tan v. Runnels, 413 F.3d 1101, 1111 (9th
Cir. 2005). Thus, we may grant habeas relief only if the last reasoned decision of
the state court is “(1) ‘contrary to’ or an ‘unreasonable application of[ ] clearly
established Federal Law, as determined by the Supreme Court of the United
States,’ or (2) based on an ‘unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Id. (quoting 28 U.S.C. §
2254(d)(1), (2)). In analyzing a claim of prosecutorial misconduct, the Supreme
Court asks (1) “whether the prosecutor’s remarks were improper,” and (2)
“whether the prosecutor[’s] comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Id. at 1112 (quoting
Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
Tatmon argues that the prosecutor’s references to “only one” crime were
improper because they implied that Tatmon was involved in multiple prior crimes,
and the prosecutor was only permitted to introduce evidence of one prior incident.
Even if the prosecutor’s comments were improper, an issue we do not reach,

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Tatmon’s claim must fail because the comments did not infect the trial with
unfairness. See id.
The prosecutor’s comments were not prominent in the context of the entire
trial, particularly since they were only made during opening argument. See Darden,
477 U.S. at 182; see also Donnelly v. DeChristoforo, 416 U.S. 637, 645–47 (1974).
Defense counsel also had an adequate opportunity to rebut the comments. Darden,
477 U.S. at 182. Furthermore, although the trial court declined to give the specific
curative instruction that defense counsel sought, the court did give instructions
explaining that attorneys’ statements do not constitute evidence and that evidence
of a prior offense could only come in for the limited purpose of proving motive,
common design or plan, or intent. See id. at 181–82; see also Bruton v. United
States, 391 U.S. 123, 135 (1968). Finally, the weight of the evidence presented at
trial was clearly against Tatmon. See Darden, 477 U.S. at 181–82. In sum, there
was not a “reasonable probability of a different result,” Hein, 601 F.3d at 915
(internal quotation marks omitted), and the state court’s holding was not in
violation of AEDPA.
AFFIRMED.

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