NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICOLA CHRISTOPHER BUCCI, 

Petitioner-Appellant,

v.

TIMOTHY E. BUSBY, Warden,

Respondent-Appellee.

No. 15-17413

D.C. No. 2:11-cv-03147 GEB KJN

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted December 13, 2016 

San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.

Nicola Bucci appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 

and affirm.

 

* This disposition is not appropriate for publication and is not precedent except 

as provided by Ninth Circuit Rule 36-3.

** The Honorable Elizabeth E. Foote, United States District Judge for the 

Western District of Louisiana, sitting by designation.

FILED

MAR 22 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Bucci was convicted after a jury trial of two counts of second degree murder 

arising from a head-on collision that left two people dead and two others seriously 

injured. He claims that he was denied due process by the admission of certain 

propensity evidence and by prosecutorial misconduct during closing arguments. 

Bucci also contends that trial counsel failed to investigate the facts of the accident 

and was therefore unconstitutionally ineffective. 

1. The state appellate court’s conclusion—that the admission into evidence 

of the 1994 fatal accident caused by Bucci did not violate Bucci’s due process 

rights—was not an unreasonable application of clearly established Supreme Court 

law. Indeed, there is no clearly established law holding that the introduction of 

propensity evidence violates due process. In the absence of a clearly established 

right, Bucci’s claim fails. 

2. The state court reasonably concluded that the prosecutor’s closing 

remarks were not a violation of Bucci’s right to due process. The relevant inquiry 

is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to 

make the resulting conviction a denial of due process.’” Darden v. Wainwright, 

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 

(1974)). The state court reasonably concluded that the prosecutor’s argument to 

the jury that Bucci “got away” with the 1994 fatalities, even if misconduct, did not 
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prejudice Bucci because there was overwhelming evidence of Bucci’s guilt.

Therefore, the state court’s conclusion that there was no due process violation did 

not stem from an unreasonable application of clearly established law. A similar 

conclusion is compelled for the prosecutor’s statements regarding character 

evidence. Those remarks did not so infect the trial with unfairness as to violate 

due process. Accordingly, Bucci’s prosecutorial misconduct claims are 

unpersuasive.

3. The state post-conviction court’s denial of relief on Bucci’s ineffective 

assistance of counsel claim after applying Strickland v. Washington, 466 U.S. 668 

(1984), was not unreasonable. The court concluded that an accident reconstruction 

expert’s testimony would have been inconsistent with, and likely would have 

undermined, Bucci’s defense at trial and that the outcome of the trial likely would 

not have changed. That conclusion is neither contrary to, nor an unreasonable 

application of, clearly established federal law. We therefore reject Bucci’s 

ineffective assistance of counsel claim.

4. We decline to expand the certificate of appealability to address the other 

issue raised by Bucci. 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may 

issue . . . only if the applicant has made a substantial showing of the denial of a 

constitutional right.”).

AFFIRMED.