Marston

MEMORANDUM **

Under the Antiterrorism and Effective Death Penalty Act of 1996, we may not grant a petition for writ of habeas corpus unless the state court’s adjudication of the claim: “(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.” 28 U.S.C.A. § 2254 (d) (West Supp.2001). We review a denial of habeas corpus de novo. See Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000).

Marston bases his first claim for habeas relief on prosecutorial misconduct. A prosecutor’s misconduct violates a defendant’s constitutional rights only if it “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Payton v. Woodford, 258 F.3d 905 , -, -, slip op. 9709, 9720 (9th Cir.2001). Marston argues that three statements by the prosecutor constitute misconduct. But Marston objected to only one of these at trial. That statement was not misconduct, because the…