NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLEN HAMMLER, No. 16-55464

Petitioner-Appellant, D.C. No. 2:12-cv-04700-JGB-SP v.

WILLIAM MUNIZ, Warden,

MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted October 22, 2019** Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and RESTANI, Judge.***

California state prisoner Allen Hammler appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. for two counts of forcible rape, two counts of forcible oral copulation, and two

counts of false imprisonment. We have jurisdiction under 28 U.S.C. §§ 1291,

2253. As the parties are familiar with the facts, we do not recount them here. We

affirm.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254, governs our review. Section 2254(d) applies even where, as here,

“there has been a summary denial” by the state court. Cullen v. Pinholster, 563

U.S. 170, 187 (2011) (citation omitted). “In these circumstances, [Hammler] can

satisfy the unreasonable application prong of § 2254(d)(1) only by showing that

there was no reasonable basis for the California Supreme Court’s decision.” Id. at

187-88 (quotation marks omitted). Hammler has not met that burden.

1. Hammler argues the prosecutor engaged in misconduct by pressuring

the jury to convict him, vouching for the evidence, using inflammatory language,

referring to evidence outside the record, and acting as an advocate witness.1 While

the prosecutor did improperly vouch for the evidence, the California Supreme

Court could have reasonably concluded that none of “the prosecutor[’s] comments

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) (quotation marks

1 Hammler’s motion for judicial notice of the preliminary hearing transcripts is granted. See Fed. R. Evid. 201(b).

2 and citation omitted); see also Parker v. Matthews, 567 U.S. 37, 48 (2012)

(reversing grant of habeas relief based on prosecutorial misconduct and noting that

“the Darden standard is a very general one, leaving courts ‘more leeway . . . in

reaching outcomes in case-by-case determinations’” (citation omitted)).

2. Hammler argues his trial counsel was ineffective for failing to

(1) object to the prosecutor’s misconduct, (2) ask the court to admonish the jury to

disregard the prosecutor’s improper argument, and (3) request jury instructions on

the prosecutor’s improper argument. To be successful, Hammler must show both

that his counsel was deficient and that he was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Because Hammler’s prosecutorial

misconduct claim fails, his ineffective assistance of trial counsel claim also fails.

Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (concluding that trial

counsel is not “ineffective for failing to raise a meritless objection”).

3. Hammler additionally argues his appellate counsel was deficient for

failing to raise issues of prosecutorial misconduct or ineffective assistance of trial

counsel on direct appeal. The Strickland standard applies to this claim as well.

See Smith v. Robbins, 528 U.S. 259, 285 (2000). Hammler “cannot sustain his

claim for ineffective assistance of appellate counsel because the issues he raises are

without merit.” Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001).

4. Finally, Hammler claims the cumulative effect of the alleged errors

3 resulted in a denial of due process. “The Supreme Court has clearly established

that the combined effect of multiple trial court errors violates due process where it

renders the resulting criminal trial fundamentally unfair.” Parle v. Runnels, 505

F.3d 922, 927 (9th Cir. 2007) (citation omitted). However, “[i]f the evidence of

guilt is otherwise overwhelming” and “the errors are considered harmless,” “the

conviction will generally be affirmed.” Id. at 928 (quotation marks omitted).

While the prosecutor did err by vouching for the evidence, the error was harmless,

and there were no other trial errors.

For the foregoing reasons, the California Supreme Court’s denial of

Hammler’s claims was not contrary to, or an unreasonable application of, clearly

established federal law. See 28 U.S.C. § 2254(d)(1).

AFFIRMED.

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