Keeven Robinson v. Christian Pfeiffer, 693 F. App'x 574

Keeven Robinson convicted after a second trial for multiple robberies; he petitioned for habeas relief alleging prosecutorial misconduct and ineffective assistance of counsel.
Alleged misconduct: prosecutor argued inconsistent theories between trials, elicited testimony about excluded evidence (a crack pipe and modus operandi/uncharged robberies), asked argumentative questions, and made improper closing remarks including vouching for a detective and implying a witness lied.
Many objections were sustained at trial, and the judge instructed the jury that statements of counsel are not evidence; defense counsel also cross-examined the detective and addressed some points in closing.
California Court of Appeal rejected Robinson’s claims; the federal district court denied habeas relief; the Ninth Circuit majority affirmed under AEDPA deference.
The majority acknowledged some troubling prosecutor conduct but held the state court did not unreasonably apply Supreme Court precedent (Berger, Donnelly, Darden) or unreasonably find lack of prejudice.
A dissent (Judge Pregerson) argued the misconduct was persistent and prejudicial given weak identification evidence and that the state court unreasonably applied Berger.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor argued inconsistent theories between trials	Robinson: prosecutor shifted theories and thus violated due process	State: both theories alleged Robinson personally committed the robberies; not inconsistent	No unreasonable application—state court reasonably found consistency or no prejudice
Elicitation of excluded evidence (crack pipe, modus operandi)	Robinson: prosecutor intentionally elicited excluded, prejudicial evidence	State: any mention was minimal, defense exposed inconsistencies, and crack pipe added nothing new	No unreasonable application—no prejudice shown
Improper/argumentative questions and sustained objections	Robinson: questions were misconduct and cumulative prejudice resulted	State: sustained objections and instructions cured potential prejudice	No unreasonable application—sustained objections mitigated prejudice
Improper closing (vouching, insinuations about witness) and cumulative error	Robinson: closing remarks and cumulative misconduct violated due process; counsel ineffective for not objecting	State: remarks were less inflammatory than cases where relief granted; counsel responded; AEDPA double deference applies	Affirmed—state court’s Darden/Berger analysis and ineffective-assistance rejection not unreasonable under AEDPA

Berger v. United States, 295 U.S. 78 (prosecutorial misconduct may violate due process when persistent and pronounced)
Donnelly v. DeChristoforo, 416 U.S. 637 (courts should not lightly infer juries adopt most damaging meaning from ambiguous argument)
Darden v. Wainwright, 477 U.S. 168 (improper closing argument does not automatically require reversal absent prejudice)
Parker v. Matthews, 567 U.S. 37 (comparison of improper argument to Darden in evaluating prejudice on habeas review)
Cullen v. Pinholster, 563 U.S. 170 (limits on federal habeas review of state-court decisions)
Haynes v. Cupp, 827 F.2d 435 (consistency of prosecution theories)
Rupe v. Wood, 93 F.3d 1434 (mitigation of prejudice by defense cross-examination)
Hein v. Sullivan, 601 F.3d 897 (sustained objections and instructions can mitigate prosecutorial comment prejudice)
United States v. Necoechea, 986 F.2d 1273 (review of cumulative error considers residual traces despite instructions)
Bruno v. Rushen, 721 F.2d 1193 (hiring an attorney is not probative of guilt)
United States v. Weatherspoon, 410 F.3d 1142 (prohibition on vouching for witness credibility)
United States v. McKoy, 771 F.2d 1207 (vouching can improperly influence jury credibility assessment)
United States v. Frederick, 78 F.3d 1370 (cumulative error more prejudicial where government case is weak)
Crater v. Galaza, 508 F.3d 1261 (dissent on AEDPA deference and prosecutorial duty)