Luevanos

MEMORANDUM *

Petitioner Albert Luevanos appeals the denial of his habeas petition, 28 U.S.C. § 2254 , following his conviction for invol *392 untary manslaughter, Cal.Penal Code § 192(b). We affirm.

1. Prosecutor’s Argument.

The first contention on appeal is that the prosecutor unconstitutionally commented on Petitioner’s decision not to testify during his trial. The California Court of Appeal considered this argument on the merits and, in doing so, applied Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965). 1 The state appellate court reasoned that the jury would not necessarily have understood the prosecutor’s statements to be a comment on Petitioner’s failure to testify, as distinct from a comment on the state of the evidence as a whole. See United States v. Lopez-Alvarez, 970 F.2d 583, 595-96 (9th Cir.1992) (holding that a prosecutor may comment on the failure of the defense to present exculpatory evidence, so long as the comment is not phrased to call attention to the defendant’s failure personally to testify).

On de novo review of the district court’s decision to dismiss the habeas petition, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we…