Sergio Rodriguez v. B. Cash

MEMORANDUM

Sergio Rodriguez appeals the district court’s order dismissing with prejudice the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

Rodriguez contends that the state court unreasonably applied Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), by failing to find error when the prosecutor made impermissible comments about Rodriguez’s failure to testify at trial. “While a direct comment about the defendant’s failure to testify always violates Griffin, a prosecutor’s indirect comment violates Griffin only ‘if it is manifestly intended to call attention to the defendant’s failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.’ ” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir.2006) (quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987)).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) standard, the state court’s conclusion that no error occurred was neither an unreasonable application of Griffin nor an unreasonable determination of the facts. See 28…