Metcalf

dissenting.

I would find that the Griffin error in this case had a substantial and injurious effect on the jury’s verdict because the evidence in this case was far from overwhelming. I would also find that the state court’s decision that the Griffin error was harmless amounts to an unreasonable application of clearly established federal law as determined by the United States Supreme Court. I would therefore reverse the district court and grant the habeas petition.

MEMORANDUM

Clark Harold Metcalf was convicted by a jury of two counts of second-degree robbery and two counts of possession of a firearm by a convicted felon. He filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254 . The district court denied the petition, and Mr. Metcalf now appeals. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and we affirm.

I.

We review de novo the district court’s decision to deny Mr. Metcalfs habeas petition. See Lockhart v. Terhune, 250 F.3d 1223, 1228 (9th Cir.2001). Because the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs Mr. Metcalfs case, we may grant habeas relief only if the state court’s decision (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d).

II.

A.

Mr. Metcalf argues first that comments made by the trial judge violated his Fifth Amendment right not to testify at his trial. Both Mr. Metcalf and the government agree…