                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      JAN 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 BENJAMIN SALOFI ASAELI,                          No. 13-35822

              Petitioner - Appellant,             D.C. No. 3:12-cv-05613-RJB

    v.
                                                  MEMORANDUM*
 MIKE OBENLAND,

              Respondent - Appellee.

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

                             Submitted January 18, 2017**

Before:        TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

         Washington state prisoner Benjamin Salofi Asaeli appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition.

We have jurisdiction under 28 U.S.C. § 2253. We review a district court’s denial

of a habeas corpus petition de novo, see Casey v. Moore, 386 F.3d 896, 904 (9th

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2004), and we affirm.

      Asaeli claims that the Washington state trial court violated his rights to a fair

trial and due process by admitting allegedly prejudicial gang evidence and

committing cumulative error. He further argues that trial counsel was

constitutionally ineffective for failing to request a lesser-included offense jury

instruction on manslaughter. The record supports the district court’s conclusion

that Asaeli defaulted these federal claims because he did not fairly present them to

the Washington Court of Appeals and the time for pursuing a personal restraint

petition had expired. Further, because Asaeli failed to show cause and prejudice

or a fundamental miscarriage of justice, the district court properly dismissed these

claims as procedurally barred. See Casey, 386 F.3d at 916-20.

       Asaeli next contends that his due process rights were violated by the

prosecutor’s use of a PowerPoint slide presentation that allegedly misstated the

law, trivialized the burden of proof, and denied him the right to present a defense.

The state court’s rejection of this claim was neither contrary to, nor based upon an

unreasonable application of, clearly established Supreme Court law. See 28

U.S.C. § 2254(d)(1); Darden v. Wainwright, 477 U.S. 168, 181 (1986) (in

prosecutorial misconduct context, the relevant question is whether “the

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prosecutor[’s] comments so infected the trial with unfairness as to make the

resulting conviction a denial of due process” (internal quotations omitted)).

      Asaeli next argues that trial counsel was constitutionally ineffective by

failing to call additional character witnesses. The state court’s rejection of this

claim was not contrary to, or an unreasonable application of, Strickland v.

Washington, 466 U.S. 668 (1984), nor an unreasonable determination of the facts

in light of the evidence presented in state court. See 28 U.S.C. § 2254(d);

Harrington v. Richter, 562 U.S. 86, 100-03 (2011).

      Finally, Asaeli challenges his conviction on double jeopardy grounds and

maintains that his due process rights were violated when his conviction for second-

degree murder was vacated by the state trial court without his consent. The record

reflects that, pursuant to the government’s concession that Asaeli was improperly

convicted of both first- and second-degree murder of the same victim, the state trial

court dismissed Asaeli’s conviction for second-degree murder. Asaeli has not

shown that the state court’s handling of this claim was contrary to, or an

unreasonable application of, clearly established Supreme Court law. See 28

U.S.C. § 2254(d)(1); Rutledge v. United States, 517 U.S. 292, 306-07 (1996).

Moreover, contrary to his contention, Asaeli’s conviction for first-degree assault of

                                           3                                    13-35822
a different victim did not violate double jeopardy. See Custer v. Hill, 378 F.3d

968, 972-73 (9th Cir. 2004).

      Asaeli’s motion for appointment of counsel is denied.

      AFFIRMED.




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