                                                                              FILED
                           NOT FOR PUBLICATION                                   DEC 28 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JAMES MOODY,                                     No. 09-35997

              Petitioner - Appellant,            D.C. No. 3:09-cv-05204-RJB

  v.
                                                 MEMORANDUM*
SCOTT FRAKES,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**

       Petitioner-Appellant James Moody appeals the district court’s denial of his

petition for writ of habeas corpus sought on ineffective assistance of counsel

grounds. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a). We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
      Moody argues that the Washington Court of Appeals unreasonably

concluded that he was not prejudiced by defense counsel’s failure to challenge the

comparability of his out-of-state convictions to a strike offense under

Washington’s Persistent Offender Accountability Act, Wash. Rev. Code Chapter

9.94A. Under that statute, Moody’s most recent conviction was deemed a third

strike, which resulted in a sentence of life without the possibility of parole.

      Defense counsel did not argue to the trial court that his out-of-state

convictions were not comparable to assault in the second degree. Although

appellate counsel made a very limited comparability argument on appeal, the

Washington Court of Appeals engaged sua sponte in a detailed comparability

analysis and held that Moody’s 1987 California conviction for assault with a

deadly weapon, Cal. Penal Code § 245 (1987), and 1993 Utah conviction for

aggravated assault with a dangerous weapon, Utah Code Ann. § 76-5-103 (1993),

were legally and factually comparable to the strike offense of assault in the second

degree, under Wash. Rev. Code § 9A.36.021(1)(c).

      Moody contends that the Washington Court of Appeals’ comparability

analysis was erroneous and, further, conducted in violation of Washington’s

waiver doctrine. Habeas corpus relief, however, does not lie for errors of state law.

Estelle v. McGuire, 502 U.S. 62, 67 (1991). Even if Moody were correct, the


                                           2
Washington Court of Appeals’ determination of comparability is a binding

interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A]

state court's interpretation of state law, including one announced on direct appeal

of the challenged conviction, binds a federal court sitting in habeas corpus.”).

Moody, therefore, cannot show a reasonable probability that, but for defense

counsel’s failure to make a comparability argument, the result of his case would

have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). The

Washington Court of Appeals’ determination that Moody’s ineffective assistance

of counsel claim fails was not an unreasonable application of federal law.

      AFFIRMED.




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