NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROY PORTER, 

Petitioner-Appellant, 

 v. 

PATRICK R. GLEBE, 

Respondent-Appellee.

No. 16-35647 

D.C. No. 2:15-cv-01666-RSM 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief Judge, Presiding

Submitted February 9, 2018**

Seattle, Washington

Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.

Roy Porter (“Porter”) appeals the district court’s denial of his 28 U.S.C. 

§ 2254 habeas petition challenging his conviction for one count of first-degree 

assault and one count of unlawful possession of a firearm. We affirm. 

We have jurisdiction to consider certified habeas claims pursuant to 28 

 

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

U.S.C. §§ 1291 and 2253. The district court certified two issues for appeal: first, 

whether the prosecutor’s misstatement of an officer’s testimony on bullet trajectory 

amounted to prosecutorial misconduct; and second, whether trial counsel’s failure 

to object to the prosecutor’s misstatement constituted ineffective assistance of 

counsel. We review the district court’s denial of each claim de novo. See 

Robertson v. Pichon, 849 F.3d 1173, 1181 (9th Cir. 2017). 

1. Porter’s claim of prosecutorial misconduct is without merit. A “prosecutor’s 

improper comments will be held to violate the Constitution only if they ‘so 

infected the trial with unfairness as to make the resulting conviction a denial of due 

process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v. 

Wainwright, 477 U.S. 168, 181 (1986)). Even assuming that the prosecutor’s 

misstatement of Officer Wilson’s testimony on the trajectory of the bullet violated 

the Constitution, Porter has failed to establish prejudice. 

“[I]t is important as an initial matter to place the remark in context.” Greer 

v. Miller, 483 U.S. 756, 766 (1987) (internal quotation marks and alterations 

omitted). Although the prosecutor misstated Officer Wilson’s testimony in her 

rebuttal to trial counsel’s closing argument, she was also careful to emphasize that 

the jury had an obligation to rely on the “actual evidence,” as opposed to the facts 

as she recounted them. Furthermore, the trial court instructed the jury to disregard 

any attorney’s “remark, statement, or argument” unsupported “by the evidence or 
3 

the law in [the court’s] instructions.” As the district court correctly noted, jury 

instructions can cure improper statements made by the prosecution. See Hein v. 

Sullivan, 601 F.3d 897, 916 (9th Cir. 2010). Porter has provided “no reason to 

believe that the jury in this case was incapable of obeying the curative 

instructions.” Greer, 483 U.S. at 766 n.8. 

We note, too, that the evidence was more than capable of supporting the 

inference that Porter shot at the victim, Darryl Peterson (“Peterson”).1 Peterson 

testified, consistent with his prior statement, that he saw Porter pull out a gun, aim 

it in his direction, and pull the trigger. Officer Wilson confirmed that Peterson’s 

version of the trajectory was possible. Accordingly, the Washington Supreme 

Court Commissioner did not unreasonably apply clearly established law in denying 

Porter’s petition for post-conviction relief. 

2. Porter’s claim that trial counsel rendered ineffective assistance by failing to 

object to the prosecutor’s misstatement is similarly meritless. Our review of state 

court decisions on ineffective assistance of counsel is “doubly deferential.” 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Washington Supreme 

Court Commissioner concluded that Porter had failed to show deficient 

 

1 We deny Porter’s request to take judicial notice of a Smithsonian article 

summarizing scientific research on the likelihood of dodging a bullet at close 

range. Our review is “limited to the record that was before the state court that 

adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011). 
4 

performance and prejudice, both of which are required to state a claim of 

ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 

(1984). Porter has failed to show that the Commissioner’s conclusions were 

“necessarily unreasonable.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

Trial counsel’s primary theory at trial was that someone else was responsible 

for shooting Peterson. Given this approach, trial counsel’s decision not to object to 

the prosecutor’s misstatement is understandable. The omission could very well 

have been strategic, and under Supreme Court precedent, we must presume that it 

was. See Strickland, 466 U.S. at 690; see also United States v. Necoechea, 986 

F.2d 1273 (9th Cir. 1993) (concluding that “the failure to object during closing 

argument and opening statements is within the wide range of permissible 

professional legal conduct.” (internal quotation marks omitted)). 

Porter has also failed to show prejudice. In light of the evidence introduced 

at trial by the State, it is not reasonably probable that a single objection would have 

altered the trial’s outcome. See Pinholster, 563 U.S. at 198. Accordingly, the 

district court correctly concluded that “the Commissioner reasonably concluded 

that trial counsel’s failure to object was not prejudicial.” 

AFFIRMED.