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Name: Dubria v. Smith
Case #: 98-55914
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/11/2000
Subsequent History: None

Under the Antiterrorism and Effective Death Penalty Act, because petitioner’s application for a certificate of appealability was denied by the district court, the notice of appeal filed here was not sufficient to preserve the issue of trial counsel’s failure to object to the prosecutor’s argument in which he called petitioner a liar and his story “garbage.” In any event, the failure to object did not constitute ineffective assistance of counsel. Reaching the merits of the issue over competing claims that petitioner waived the issue by failing to object in the trial court, and that respondent procedurally defaulted on the waiver issue by failing to raise it in its answer the habeas petition, the en banc court concluded that the admission of an unredacted tape and transcript of a police interview with petitioner did not so fatally infect the proceedings as to render them fundamentally unfair or violative of the due process clause. The comments by the officer were unremarkable, and the trial court gave a curative instruction.