NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DASHEME KAREME HOSLEY, No. 19-15054

Petitioner-Appellant, D.C. No. 1:15-cv-01374-LJO-JDP v.

RICK HILL, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted February 10, 2021 San Francisco, California

Before: WARDLAW and GOULD, Circuit Judges, and CAIN,** District Judge.

Dasheme Kareme Hosley appeals the district court’s denial of his petition

for habeas corpus and argues that the prosecutor at his murder trial committed

prejudicial misconduct in violation of due process. We have jurisdiction pursuant

to 28 U.S.C. §§ 1291 and 2253(c)(1)(A), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James David Cain, Jr., United States District Judge for the Western District of Louisiana, sitting by designation.

Panel “We review de novo the district court’s denial of [Hosley’s] habeas corpus

petition.” Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017). Habeas review of

a state court judgment is governed by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254(d). Relief cannot be granted

unless the petitioner demonstrates that the last reasoned state court decision—here,

the decision of the California Court of Appeal—was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” Lockyer v. Andrade, 538 U.S. 63, 70–71

(2003) (quoting 28 U.S.C. § 2254(d)). Under federal law, a prosecutor’s improper

comments violate due process only when they “infect[] the trial with unfairness.”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)).

1. It was not contrary to or an unreasonable application of federal law for

the state court to conclude that the prosecutor’s misstatements of the law did not

violate due process. Generally, “[a] jury is presumed to follow its instructions.”

Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citation omitted). This presumption

extends to curative instructions, Greer v. Miller, 483 U.S. 756, 766 n.8 (1987),

even when the curative instructions are not given immediately after the error is

made, see Brown v. Payton, 544 U.S. 133, 146–47 (2005). Here, the prosecutor

misstated the law regarding second degree murder and imperfect self-defense

2 during her closing argument and rebuttal. The trial court then correctly instructed

the jury on the law and told the jury to follow the instructions rather than the

prosecutor’s statements. The prosecutor herself also emphasized that the jury

should follow the court’s instructions rather than her statements of the law. Under

these circumstances, it was not “objectively unreasonable,” Lockyer, 538 U.S. at

76, for the state court to presume that the jury followed the correct instructions,

rendering the prosecutor’s misstatements harmless.

2. For similar reasons, it was not contrary to or an unreasonable

application of federal law for the state court to conclude that the prosecutor’s

arguing of evidence did not violate due process. In her rebuttal, the prosecutor

improperly referenced the contents of a letter for their truth, when the letter was

submitted only to support an expert’s opinion. The trial judge then properly

instructed the jury on the use of evidence, and specifically explained the limited

purpose for which the letter was admitted. As with the misstatements of law, it

was not objectively unreasonable for the state court to presume the jury followed

the court’s clear instructions. See Weeks, 528 U.S. at 234.

3. It was also not contrary to or an unreasonable application of federal

law for the state court to conclude that the prosecutor’s misuse of Hosley’s prior

assault conviction was harmless. The conviction was allowed into evidence for

impeachment purposes only, but at closing the prosecutor improperly referenced it

3 to establish Hosley’s history of violence. The trial court thoroughly corrected the

improper reference. Hosley argues that it is impossible to cure by instruction an

improper reference to a prior conviction, but no Supreme Court law supports this

proposition. Furthermore, there was substantial admissible evidence establishing

Hosley’s history of violence. In light of the trial court’s curative instructions and

the other evidence of Hosley’s history of violence, it was not objectively

unreasonable for the state court to conclude that the improper reference did not

render the trial fundamentally unfair.

4. Finally, it was not contrary to or an unreasonable application of

federal law for the state court to conclude that the prosecutor’s multiple

misstatements did not violate due process. Multiple independently harmless errors

can cumulatively violate due process if the errors combine to render a criminal

defense “far less persuasive” then it otherwise would have been. Parle v. Runnels,

505 F.3d 922, 927 (9th Cir. 2007) (quoting Chambers v. Mississippi, 410 U.S. 284,

294, 302–03 (1973)). This normally requires a “unique symmetry,” id. at 933,

where the errors compound each other in a manner that goes “to the heart of the

defense’s case,” id. at 934. When considering the cumulative effect of errors, a

court must also consider “the overall strength of the prosecution’s case.” Id. at

928.

4 Hosley argues that, as in Parle, all errors here went to the heart of his case—

his state of mind—and this “unique symmetry” starkly amplified the prejudice

caused by each error independently. However, unlike in Parle, here all errors were

later corrected. In light of the general presumption that instructions are followed,

see Weeks, 528 U.S. at 234, and the significant admissible evidence involving the

content of the letter and Hosley’s history of violence, it was not objectively

unreasonable for the state court to conclude that the prosecutor’s misstatements,

even combined, did not render the defense “far less persuasive” than it otherwise

would have been. Parle, 505 F.3d at 927 (citation omitted).

AFFIRMED.

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