Did the Ninth Circuit's opinion create a conflict with this Court's decision in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), under which specific curative instructions are required to ameliorate the harm from pervasive prosecutorial misconduct?

QUESTION PRESENTED At Curtis Fauber’s trial, the prosecution relied on the testimony of two accomplices to secure his conviction and death sentence. Sensing that his key witness, Brian Buckley, was likely to be discredited, the prosecutor introduced Buckley’s plea agreement to shore up his credibility. The terms of the agreement made clear that: (1) Buckley had already submitted to an interview with the prosecutor to assess his credibility; (2) he would not be eligible for a plea bargain if the prosecutor determined he was lying; and (3) the trial judge presiding over Fauber’s trial would monitor Buckley’s truthfulness to resolve disputes as to his credibility. In closing, the prosecutor argued that the case turned on Buckley’s testimony and his plea agreement was the “main key” to his credibility. This was flagrant vouching, yet trial counsel failed to object, and the trial court gave no curative instructions. Despite this alarming record of misconduct and ineffective assistance of counsel, the Ninth Circuit held that the California Supreme Court (“CSC”) reasonably denied Fauber’s vouching and ineffective assistance claims. The question presented is: Did the Ninth Circuit’s opinion create a conflict with this Court’s decision in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), under which specific curative instructions are required to ameliorate the harm from pervasive prosecutorial misconduct? 1