and Submitted May 12, 2014 Pasadena, California
from the United States District Court for the Central
District of California, D.C. No. 2:04-cv-08245-GHK-JTL George
H. King, Chief District Judge, Presiding
J. Geragos (argued), Geragos & Geragos, Los Angeles,
California, for Petition-Appellant.
Tran (argued), Deputy Attorney General; Kenneth C. Byrne,
Supervising Deputy Attorney General; Lance E. Winters, Senior
Assistant Attorney General; Dane R. Gillette, Chief Assistant
Attorney General; Kamala D. Harris, Attorney General; Office
of the Attorney General, Los Angeles, California; for
Before: John T. Noonan, Jr., Kim McLane Wardlaw and Raymond
C. Fisher, Circuit Judges.
panel affirmed the district court's judgment dismissing
California state prisoner Michael Demirdjian's habeas
corpus petition challenging his conviction and sentence for
murdering two teenage boys with intent to inflict torture,
committed when Demirdjian was 15 years old.
claimed that his counsel was ineffective by failing to
challenge statements by the prosecutor as either improper
comments on Demirdjian's decision not to testify, in
violation of Griffin v. California, 380 U.S. 609
(1965), or improper shifting of the burden of proof to the
defense. Under the deferential standard required by AEDPA,
the panel concluded that there is a reasonable argument that,
because there was no prosecutorial error, defense
counsel's decision to rebut the prosecution's
comments directly rather than object at trial or on appeal
was adequate, and that this strategy did not undermine the
reliability of Demirdjian's conviction.
also claimed that his sentence of two consecutive terms of 25
years to life violates the Eighth Amendment under Miller
v. Alabama, 132 S.Ct. 2455 (2012), because it is the
"functional equivalent" of a mandatory
life-without-parole sentence and he was a juvenile offender.
Applying the deferential AEDPA standard, the panel held that
there is a reasonable argument that the sentence is
constitutional because it actually allows for the possibility
Judge Noonan wrote that trial counsel's performance was
constitutionally deficient because he failed to object to the
prosecution's improper attempts at burden shifting,
multiple Griffin errors, and pleas to the
jurors' passions; that this deficient performance
influenced the jury's verdict; and that no reasonable
argument exists to the contrary.
FISHER, Circuit Judge:
Demirdjian appeals the denial of his 28 U.S.C. § 2254
habeas petition. In 2001, he was convicted of murdering two
teenage boys with intent to inflict torture; he was 15 years
old at the time of the crimes. During closing argument, the
prosecution repeatedly commented on the defense's failure
to explain key incriminating evidence or use competent
evidence to support its exculpatory theories. Instead of
objecting, defense counsel rebutted the comments by giving
non-incriminating explanations of the evidence and reminding
the jury the prosecution bore the burden of proof. Demirdjian
was later sentenced to two consecutive terms of 25 years to
habeas petition, Demirdjian claims his counsel was
ineffective by failing to challenge the prosecution's
statements as either improper comments on Demirdjian's
decision not to testify, in violation of Griffin v.
California, 380 U.S. 609, 615 (1965), or improper
shifting of the burden of proof to the defense. He also
claims his sentence violates the Eighth Amendment because it
is the "functional equivalent" of a mandatory
life-without-parole sentence, and he was a juvenile offender.
The district court denied habeas relief on both claims.
affirm under the deferential standard required by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Under AEDPA, the question is not whether we think
Demirdjian received ineffective assistance or an
unconstitutional sentence, but whether there is any
reasonable argument to the contrary. We conclude there is.
First, there is a reasonable argument that, because there was
no actual prosecutorial error, defense counsel's decision
to rebut the prosecution's comments directly rather than
object at trial or on appeal was adequate, and this strategy
did not undermine the reliability of Demirdjian's
conviction. Second, there is a reasonable argument
Demirdjian's sentence is constitutional because it
actually allows for the possibility of parole.
evening of Saturday, July 22, 2000, petitioner Michael
Demirdjian, then 15, played basketball at a local park with
13-year-old Chris McCulloch and 14-year-old Blaine Talmo, Jr.
Around 9:50 p.m., he left with the boys to go to a nearby
school. The next evening, McCulloch and Talmo were found on a
playground a few blocks away - dead from multiple blunt force
trauma. Next to Talmo's battered head, officers found a
16-pound rock stained with both victims' blood. A 12-foot
bench weighing more than 60 pounds lay across McCulloch's
chest and neck. The right front pocket of Talmo's pants
was pulled out, as if emptied. A trail of bloody shoe prints
indicated someone had walked away from the scene to an
outside sink stained with McCulloch's blood.
later found traces of McCulloch's blood on
Demirdjian's doorjamb. In Demirdjian's trash were
Talmo's alarm clock and wallet - with some of the
contents burned - and a pair of recently cleaned, but still
bloody, sneakers. The discarded sneakers matched the bloody
shoe prints, two dogs identified Demirdjian's scent on
the 16-pound rock, and drops of Demirdjian's blood were
found at the crime scene. Demirdjian had fresh cuts on his
hands and knuckles and had lied when asked by Talmo's
stepmother if he had seen Talmo. The state charged Demirdjian
with two counts each of robbery and murder, with special
circumstances for multiple murders, murder during a robbery
and murder involving torture.
was tried twice. At his first trial, he took the stand and
testified he had witnessed 19-year-old Adam Walker, a
well-known drug dealer, murder the boys, but had not himself
participated in the murders. That trial resulted in a hung
jury, deadlocked at 8-4 in favor of conviction after a week
of deliberations. At his second trial, Demirdjian did not
testify. The prosecution focused on the key physical evidence
tying Demirdjian to the crime scene and implying a guilty
mind. As to motive, the prosecution theorized Demirdjian and
his friend Damian Kim had wanted to "jack"
McCulloch and steal his money because, five days earlier,
Walker had pulled a "jack move" and stolen hundreds
of dollars from Demirdjian and Kim during a fake drug deal.
The defense challenged the reliability of some of the
prosecution's key evidence, but focused primarily on
introducing circumstantial evidence that Adam Walker murdered
the boys and had his friends help clean up. Specifically, the
defense emphasized that Walker had scrapes and bruises on his
body, and police found at his friend's home a washed rug,
a blood stain initially matching the stain on
Demirdjian's door (but later found not to be a match) and
- in the trash - some damp clothes, gloves and a newspaper
article about the crimes.
first prosecutor to speak at closing, Barshop, noted the
prosecution's burden of proof, but repeatedly called on
the defense to "explain" certain
"unexplainable" evidence, such as the discarded
wallet and clock, the bloody shoe prints and the blood stain
at Demirdjian's home. Defense counsel, Mathews, responded
with non-incriminating explanations of the evidence and
stressed that the prosecution bore the burden of proof. A
second prosecutor, Do, spoke on rebuttal, discrediting the
defense's explanations and theory about Walker as not
based on "reliable, competent evidence." Defense
counsel did not object to any of the prosecutors'
statements. The court later instructed the jury that
Demirdjian had a constitutional right not to testify, the
jury could not discuss or draw any inferences from his
silence and the prosecution bore the burden of proof.
jury deliberated for five days and convicted Demirdjian of
two counts of first-degree murder, with special circumstances
for multiple murders and intentional infliction of torture.
He was acquitted of robbery and special-circumstance murder
during a robbery and was sentenced to two consecutive terms
of life imprisonment without parole. On appeal,
Demirdjian's counsel did not directly attack the
prosecution's closing argument challenges to the defense
on key evidence, but did argue the jury had impermissibly
considered Demirdjian's silence.
exhausting his direct appeals, Demirdjian timely filed a
state habeas petition claiming, among other things,
ineffective assistance based on his counsel's failure to
challenge the prosecution's closing statements as either
violating Griffin or improperly shifting the burden
of proof to the defense. The trial court summarily denied the
petition, as did the California Court of Appeal, stating the
petition "ha[d] been read and considered." The
California Supreme Court denied review.
that petition was pending, the California Attorney General
informed the trial court that Demirdjian's sentence
likely violated California law because he was only 15 years
old at the time of the crimes. After a new sentencing
hearing, Demirdjian was resentenced to two consecutive terms
of 25 years to life, making him eligible for parole after 50
years. On appeal, he argued his new sentence violated the
Eighth Amendment because he was a juvenile offender. The
California Court of Appeal affirmed, reasoning that no
Supreme Court precedent barred his sentence, see People
v. Demirdjian, 50 Cal.Rptr.3d 184, 187-88 (Ct. App.
2006), and the California Supreme Court again denied review.
timely filed a federal habeas petition. After the district
court dismissed the petition, we granted a certificate of
appealability on two issues: whether Demirdjian's counsel
was ineffective at trial and on appeal by failing to raise a
claim of prosecutorial misconduct for Griffin error
and improper burden shifting; and whether Demirdjian's
sentence of two consecutive terms of 25 years to life
constitutes cruel and unusual punishment because he was a
minor at the time of the crimes. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we affirm.
Standard of Review
review de novo a district court's denial of a habeas
petition. See Murray v. Schriro, 745 F.3d 984, 996
(9th Cir. 2014). Our review is governed by AEDPA, which
"bars relitigation of any claim 'adjudicated on the
merits' in state court" unless the state court's
decision satisfies 28 U.S.C. § 2254(d)(1) or (2).
Harrington v. Richter, 562 U.S. 86, 98 (2011)
(quoting 28 U.S.C. § 2254(d)). AEDPA's relitigation
bar applies to both Demirdjian's summarily denied
ineffective assistance claim, see id. at 99-100, and
his Eighth Amendment claim, see id. at 98. The
California Court of Appeal's decision on each claim is
the "relevant state-court decision" for purposes of
§ 2254(d). Murray, 745 F.3d at 996.
Accordingly, for each of Demirdjian's claims, we cannot
grant habeas relief unless the California Court of
Appeal's decision on that claim was "contrary to, or
involved an unreasonable application of" clearly
established Supreme Court authority. 28 U.S.C. §
standard is "difficult to meet." Richter,
562 U.S. at 102. We must "determine what arguments or
theories supported or" - for Demirdjian's summarily
denied ineffective assistance claim - "could
have supported the state court's decision" and
"whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme]
Court." Id. (emphasis added). We can grant
habeas relief only where the state court's decision is
"so lacking in justification that there was an error . .
. beyond any possibility for fairminded disagreement."
Id. at 103.
"all the more difficult" to satisfy §
2254(d)(1) where, as here, the petitioner raises an
ineffective assistance claim. Id. at 105. Even on de
novo review, the standard for showing ineffective assistance
is "highly deferential." Strickland v.
Washington, 466 U.S. 668, 689 (1984). When we evaluate
an ineffective assistance claim under § 2254(d)(1), our
review is "doubly deferential." Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). If "there is
any reasonable argument that counsel satisfied
Strickland's deferential standard, " we
must deny habeas relief. Richter, 562 U.S. at 105.
Ineffective Assistance Claim
provides the clearly established law governing
Demirdjian's ineffective assistance claim. See Gentry
v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013)
(evaluating an ineffective assistance claim under AEDPA using
Strickland's two-pronged test). In
Strickland, the Supreme Court made clear "[t]he
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result." 466 U.S.
at 686. The Court then established a two-pronged test for
meeting that standard: an individual must show
"counsel's performance was deficient" and
"the deficient performance prejudiced the defense."
Id. at 687. "Surmounting
Strickland's high bar is never an easy
task." Padilla v. Kentucky, 559 U.S. 356, 371
(2010). We hold there is a reasonable argument Demirdjian has
failed to do so here.
first consider whether the California Court of Appeal
reasonably could have concluded defense counsel's
performance was not deficient. Under
Strickland's first prong, an attorney's
representation is deficient if it "fell below an
objective standard of reasonableness, " as seen
"from counsel's perspective at the time." 466
U.S. at 688, 689. Because "it is all too easy" for
courts to second guess errors in hindsight, id. at
689, Strickland mandates a "strong
presumption" that counsel acted "for tactical
reasons rather than through sheer neglect, "
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per
curiam). To overcome this strong presumption, Demirdjian must
show counsel's errors were "so serious that counsel
was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland,
466 U.S. at 687.
contends his counsel performed deficiently at trial and on
appeal by failing to challenge some of the statements the
prosecution made at closing. Before we can assess that
performance, though, we must determine "whether the
prosecutor's remarks constituted objectionable
misconduct." Zapata v. Vasquez, 788 F.3d 1106,
1112 (9th Cir. 2015). In making that determination, we are
mindful that "an unreasonable application of
federal law is different from an incorrect
application of federal law." Williams v.
Taylor, 529 U.S. 362, 410 (2000). AEDPA thus prohibits
us from treating a prosecutorial statement as error if
"there is any reasonable argument" to the contrary.
Richter, 562 U.S. at 105. Because there is a
reasonable argument none of the statements was
error, we hold the California Court of Appeal reasonably
could have concluded counsel's performance was not
Alleged Griffin Errors
has not shown the prosecution committed Griffin
error beyond any possibility for fairminded disagreement.
Griffin prohibits "comment by the prosecution
on the accused's silence." 380 U.S. at 615. We have
distinguished, however, between permissible "comments
about the lack of explanation provided by the
defense" and impermissible "comments about
the lack of explanation furnished by the
defendant." United States v. Mayans,
17 F.3d 1174, 1185 (9th Cir. 1994). A prosecutor's remark
thus can "call attention to the defendant's failure
to present exculpatory evidence, " id., so long
as it is not "of such a character that the jury would
naturally and necessarily take it to be a comment on the
failure to testify, " Lincoln v. Sunn, 807 F.2d
805, 809 (9th Cir. 1987).
nearly two dozen Griffin errors alleged here fall
into three main groups. The first group, by far the largest,
consists of statements asking defense counsel Mathews to
explain certain "unexplainable" evidence. These
statements followed the same pattern. The first prosecutor,
Barshop, highlighted a piece of incriminating evidence - the
cuts on Demirdjian's hands, the bloody shoe prints that
matched the blood-stained sneakers in Demirdjian's trash,
the stain of McCulloch's blood on Demirdjian's
doorjamb and the discarded wallet and clock - and offered the
prosecution's explanation. Barshop then expressly asked
defense counsel - not Demirdjian - to "explain" the
evidence in a non-incriminating way. Defense counsel Mathews
responded on rebuttal by offering non-incriminating
explanations of this evidence. The second prosecutor, Do,
then criticized the defense's explanations as not based
on "reliable, competent evidence."
is a reasonable argument none of these remarks violated
Griffin. No statement directly "comment[ed] . .
. on [Demirjian]'s silence." Griffin, 380
U.S. at 615. And we have upheld similar comments as merely
calling attention to the defense's failure to explain
incriminating evidence or introduce exculpatory evidence.
See, e.g., Mayans, 17 F.3d at 1179, 1186
("[T]here is no evidence to contradict [the
incriminatory nature of the defendant's
interaction]."); United States v. Sehnal, 930
F.2d 1420, 1423, 1425 (9th Cir. 1991) ("[A]sk [defense
counsel] if he's explaining to you why it is that none of
these monies found their way into the corporate bank
account."); United States v. Wasserteil, 641
F.2d 704, 709 (9th Cir. 1981) ("I asked all the
defendants . . . to please explain to you how this legitimate
business transaction worked . . . . Did you hear an
explanation from them?").
dissent argues these statements were nevertheless
Griffin error because Demirdjian was the "sole
person who could provide information" on the
prosecution's questions. Rhoades v. Henry, 598
F.3d 495, 510 (9th Cir. 2010). As defense counsel's
rebuttal arguments demonstrated, however, Demirdjian was not
necessarily the only source of explanation available
to the defense. Regardless, such comments are
impermissible only where there are "very clear signals
that the defendant himself, rather than the defense
generally, was being discussed." Mayans, 17
F.3d at 1185; see Sehnal, 930 F.2d at 1424
(prosecutor improperly used the rhetorical tag "ask
him" to refer to the defendant); Lincoln, 807
F.2d at 809 & n.1 (prosecutor improperly said the
defendant was the "only . . . person who can tell
us"); United States v. Sigal, 572 F.2d 1320,
1322-23 & n.1 (9th Cir. 1978) (prosecutor improperly said
"the defendants did not deny" heading up part of
the conspiracy). Here, the prosecutors' focus on the
defense's failure to introduce "competent,
admissible evidence" arguably was not a very clear
signal that Demirdjian was being discussed. See,
e.g., Rhoades, 598 F.3d at 511 (holding that
the statement, "If there was evidence out there that
would disassociate this gun from [the defendant], we'd
have heard it, " was not Griffin error because
a "natural reading" was "there was no
meaningful challenge to the government's evidence").
second group of statements came from Do's rebuttal
closing, where she commented on evidence indicating
Demirdjian had a guilty mind. Do asked counsel to explain why
the contents of Talmo's wallet were burned and why
Demirdjian had lied to Talmo's stepmother about whether
he had seen Talmo:
What Mr. Mathews has given is alternative facts. . . .
How does he explain the fact that the contents [of
Talmo's wallet] are burned, and ripped-out, and thrown
out with his bloody shoes? He hasn't. . . . Has he
given you any explanation for why Michael Demirdjian is
destroying evidence? Any explanation for why Michael
Demirdjian is concealing evidence?
. . . .
Now, Mr. Mathews wants you to believe that there's no
way Michael Demirdjian would harm these two boys because
they're his friends. Just think about it. . . .
[Demirdjian] looks at [Talmo's stepmother] and he tells
her, "I don't know where they are. I haven't
seen them. I'm expecting a phone call."
How do you explain that? He certainly was not Chris
McCulloch and Blaine Talmo's friends [sic].
(Emphasis added.) Although on de novo review this would be a
closer case, there is at least a reasonable argument these
statements merely commented on the defense's
"failure to present exculpatory evidence."
Mayans, 17 F.3d at 1185.
none directly "comment[ed] . . . on the accused's
silence." Griffin, 380 U.S. at 615. The first
statement, which Do expressly addressed to defense counsel,
arguably did not contain "very clear signals" she
was referring to Demirdjian in particular. Mayans,
17 F.3d at 1185. At one point, Do used the pronoun
"he" to refer to both Mathews and Demirdjian, but
the referents are clear enough from context that the comment
need not have "naturally and necessarily"
called for an explanation from Demirdjian himself.
Lincoln, 807 F.2d at 809 (emphasis added). For the
other two statements, Do was not necessarily asking the jury
to "treat the defendant's silence as substantive
evidence of guilt, " United States v. Robinson,
485 U.S. 25, 32 (1988) (quoting Baxter v.
Palmigiano, 425 U.S. 308, 319 (1976)), but could have
been permissibly using his earlier lies to discredit the
theory that he was friends with the victims.
final group of statements, Do directly addressed the
defense's theory that Adam Walker was the murderer. At
trial, defense counsel had presented only circumstantial
evidence to show Walker was the murderer. During closing,
however, Mathews suggested one of Walker's friends, Greg
Furnish, had seen Walker at the crime scene: "There was
one witness to the murders, " Mathews told the jury,
"and it was not Michael Demirdjian." Mathews also
twice suggested Demirdjian "saw Adam Walker" at the
crime scene - the second time over the prosecution's
objection. Though recognizing defense counsel's remarks
were "error, " the trial court ruled that, to avoid
any Griffin error in response, the prosecution could
not "comment" on what Demirdjian saw, but was
"free to comment on" how the defense's theory
lay "outside any evidence that has been received in this
trial." On rebuttal, Prosecutor Do told the jury,
"You've heard no testimony, no evidence from this
witness stand, ...