Karl Tobey v. Jeffery Uttecht

MEMORANDUM

Karl Tobey (“Tobey”) appeals the denial of his habeas petition. After his first trial ended in a hung jury, Tobey was convicted of two counts of child rape in Washington state court. He claims that the prosecution improperly bolstered the testimony of the child witness and misstated the burden of proof during closing argument, and that these errors had a substantial or injurious effect on the jury’s verdict. We affirm.

Tobey’s habeas petition is subject to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 (d), which provides that the state court’s decision is entitled to deference unless it “(1) 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,” or “(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

To obtain relief on a claim of prosecuto-rial misconduct, a habeas petitioner must do more than show that the remarks were “undesirable or even universally condemned” but must demonstrate that the comments…