Petitioner Antonio Robert Chavez appeals the district court's denial of his habeas corpus petition. 28 U.S.C. 2254. In his petition, Petitioner challenges his 1988 state convictions for aggravated robbery and crime of violence claiming that he was denied due process due to prosecutorial misconduct.

In support of his petition, Petitioner alleges four incidents of prosecutorial misconduct. First, during opening statements, the prosecutor told the jury that Petitioner was arrested with a .45 caliber pistol and that police found a telescope, sawed-off shotgun, police scanner, and stocking masks when searching Petitioner's home. During the course of the trial, this evidence was ruled inadmissable. Second, also during opening statements, the prosecutor referred to Petitioner's confession to a detective in which he admitted to being a heroin addict and to robbing people to obtain money to buy drugs. Petitioner claims that the prosecution failed to provide them with this evidence during discovery. Third, the prosecutor, during cross-examination, asked Petitioner, "Mr. Chavez, you are an admitted junkie?" Petitioner claims the use of the word "junkie" was intended to prejudice the jury. Fourth, during cross-examination, the prosecutor asked Petitioner whether he had any proof that he had ever been employed. Although Petitioner's objection to the question was sustained, the prosecutor again during closing argument noted that Petitioner "didn't bring anything suggesting to you that he ever made a nickel working at anything." Petitioner claims the prosecutor, through these statements, improperly attempted to shift the burden of proof to Petitioner.3

Petitioner appealed his convictions to the Colorado Court of Appeals. That court affirmed his convictions, and Petitioner's petition for a writ of certiorari to the Colorado Supreme Court was denied.4

Prosecutorial misconduct does not warrant federal habeas relief unless the conduct complained of "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990). In evaluating whether improper prosecutorial comments render a defendant's trial fundamentally unfair, we view the comments within the context of the trial as a whole. United States v. Young, 470 U.S. 1, 11-12 (1985). Not every trial error or infirmity constitutes a "failure to observe that fundamental fairness essential to the very concept of justice." Donnelly, 416 U.S. at 645.

Each of the alleged incidents of prosecutorial misconduct in the instant case was relatively minor and was handled appropriately by the district court. See People v. Chavez, No. 87CR261-C, slip op. (Colo.App. June 13, 1991). The prosecutor's opening statements, concerning evidence that was ultimately suppressed, were made with a good faith belief that the evidence would be admissable. Further, although a suppression hearing was held, Petitioner failed to seek suppression of this evidence in advance of trial. With regard to the prosecutor's comments concerning Petitioner's drug use, Petitioner had intended to and did submit his own evidence that he was a heroin addict. As a result, Petitioner suffered no prejudice. Finally, the prosecutor's comments regarding Petitioner's lack of proof of employment were cured by the trial court's instructions to the jury to decide the case on the evidence alone.

Even assuming that the incidents complained of by Petitioner amounted to prosecutorial misconduct, we hold that Petitioner was not denied a fair trial. "The prosecutors' [comments] did not manipulate or misstate the evidence, nor did [they] implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). The trial court instructed the jurors on several occasions that their decision was to be based on the evidence alone and that the remarks of counsel were not evidence. Furthermore, the evidence of Petitioner's guilt, which included Petitioner's own confession, was substantial. Given this weighty evidence, the likelihood that the jury's decision was influenced by the prosecutor's comments is greatly reduced. See id. at 182. Under these circumstances, we cannot say that the alleged improper prosecutorial comments "so infected [Petitioner's] trial with unfairness as to make [his] resulting conviction[s] a denial of due process." Donnelly, 416 U.S. at 643.

AFFIRMED.