                                                                           FILED
                           NOT FOR PUBLICATION                               OCT 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROY DARYL WILKERSON,                             No. 10-35573

              Petitioner - Appellant,            D.C. No. 3:07-cv-00869-BR

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                      Argued and Submitted October 11, 2011
                                Portland, Oregon

Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**


       Roy Daryl Wilkerson, an Oregon state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
conviction for one count of assault in the first degree and two counts of assault in

the second degree. Wilkerson seeks relief, alleging trial counsel rendered

ineffective assistance of counsel when he failed to object to certain remarks made

by the prosecutor during closing argument. We review de novo the district court’s

denial of a state prisoner’s habeas petition, Parle v. Runnels, 505 F.3d 922, 926

(9th Cir. 2007), and we affirm.

1.    Remarks applicable to Wilkerson’s self-defense claim.

      The Oregon state court’s denial of Wilkerson’s Strickland claim was not

contrary to, or an unreasonable application of, Supreme Court precedent with

regard to trial counsel’s failure to object to the prosecutor’s closing statements

relating to the location of Wilkerson’s t-shirt. See 28 U.S.C. § 2254(d) (a federal

court may not grant habeas relief unless it concludes that the state court’s

adjudication of the claims “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision

that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding”).

      Under Strickland v. Washington, Wilkerson must allege both (1) “that

counsel’s representation fell below an objective standard of reasonableness,” 466


                                           2
U.S. 668, 688 (1984); and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. The Umatilla Circuit Court found that, while the

prosecutor’s statements were improper, trial counsel’s failure to object was a trial

tactic not inadequate representation. Accepting the Umatilla Circuit Court’s

finding, Wilkerson failed to provide any evidence to support his claim that his

counsel’s failure to object to the prosecutor’s closing argument was objectively

unreasonable. As the Supreme Court suggested in Harrington v. Richter, “[t]here

is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion

of others reflects trial tactics rather than ‘sheer neglect.’” 131 S. Ct. 770, 790

(2011).

      Even if trial counsel’s failure to object was objectively unreasonable,

Wilkerson cannot show that “but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” See Strickland, 466 U.S. at 694. The

trial court cured any error by its reading of the jury instructions. See United States

v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985). The jury was properly instructed

that the prosecution had the burden of proving Wilkerson’s guilt beyond a

reasonable doubt. That burden specifically included Wilkerson’s self-defense

claim. Thus, the state court’s determination that trial counsel did not provide


                                           3
inadequate representation was neither contrary to, nor an unreasonable application

of, clearly established law.

2.    Remarks regarding who was the aggressor.

      Assuming exhaustion of this claim, Wilkerson failed to provide any

evidence to support his claim that the prosecutor’s statements were improper or a

mischaracterization of the facts, as there was conflicting testimony regarding who

was the aggressor. Even if the statement were improper, Wilkerson failed to meet

the Strickland test. There is no support for the argument that trial counsel’s failure

to object to the prosecutor’s closing argument was ineffective assistance. Lastly,

any failure to object was rendered harmless by the trial court’s instructions to the

jury that the attorneys’ statements and arguments are not evidence. McKoy, 771

F.2d at 1213.

      AFFIRMED.




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