Roe

MEMORANDUM *

Johnnie Boyd Roe appeals the district court’s denial of his habeas petition chal *654 lenging his convictions for four counts each of unlawful use of a weapon with a firearm, attempted first-degree assault with a firearm, reckless endangering of another person, menacing, and pointing a firearm at another person, as well as one count each of second-degree assault and second-degree criminal mischief. 1 We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). The scope of our review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is narrow. See 28 U.S.C. §§ 2253 , 2254(d).

Roe argues that his due process rights were violated when the prosecutor impermissibly commented on his silence and that such error was prejudicial. The prosecutor’s statements during closing argument did violate Roe’s due process rights. See United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000). The error however, was harmless because it did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 638 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993).

Here, the evidence against Roe at trial…

concurring.

I concur in the result.